Historically, criminal law has been almost exclusively a matter of domestic law. Some exceptions, including piracy and slave trading, permitted States to punish perpetrators of such conduct that crossed national boundaries or occurred outside the sovereign territory of a State.

Since World War II, several developments have altered this landscape. These include the fact that crime has increasingly become transnational; the international community's efforts to punish the worst forms of criminal behavior; and the growth of human rights discourse and practice.

International Criminal Law (ICL) has become "a body of international rules both to proscribe certain categories of conduct (genocide, torture, aggression) and to make those persons who engage in such conduct criminally liable." (Antonio Cassese, International Criminal Law.)

ICL can be defined narrowly (with reference to only those "core crimes" established in IL), or broadly (with reference to "transnational" crimes, including human/drug trafficking or money laundering, prosecuted by domestic authorities under domestic law). A definition may include both of these and also incorporate the other procedureal and substantive issues that arise when domestic criminal law is applied to transnational conduct.

The sources of ICL are the same contained in Article 38 of the Statute of the ICJ:

1. international treaties
2. customary international law
3. general principles of law

Today, treaties are the primary source of rules and obligations in contemporary ICL. The most important is the Rome Statute, which created the ICC. Several important precedents — such as the Charter of the International Military Tribunal (1945), the Genocide Convention (1948), and the Statutes of the ICTY (1993) and ICTR (1994) — can be seen in the Rome Statute.

Most of the core crimes at issue in ICL are also serious violations of IHRL, and both bodies of law aim to protect human persons. But there is a fundamental difference between them. IHRL imposes obligations on governments related to how they treat individuals, specifically those people within the territory and jurisdiction of the State concerned. ICL, however, imposes criminal responsibility on individual perpetrators.

ICL is likewise akin to IHL. For instance, the most serious violations of IHL may be prosecuted as war crimes, one of the "core crimes" under ICL. However, IHL can be applied to hold responsible both individuals and States for violations of IHL, e.g., the Geneva Conventions.

International courts and tribunals derive their jurisdiction from the instruments that established them, such as the UN Security Council resolution establishing the ICTR or the Rome Statute establishing the ICC.

But the large majority of cases involving international or transnational crimes are still prosecuted in domestic courts under domestic law. This is because most crimes takes place within one or more States and are committed against nationals of those States, and therefore those States have the greatest interest in prosecuting the perpetrators.

"Jurisdiction" refers to the authority of each State to determine when and how its domestic law applies with respect to people and conduct outside its territorial borders. Domestic jurisdiction can refer to the ability of a State to prescribe the extraterritorial application of its domestic law, or the authority of domestic courts to apply their law in specific cases.

Customary international law recognizes several justifications or grounds for the exercise of a State's domestic jurisdiction over persons, property, and activities inside and outside its territory. They typically fall under one of the five categories below. But note that these grounds for jurisdiction are permissive, not mandatory — no State is required to apply its law extraterritorially. This is the Lotus principle, named after the famous Lotus case, which established that "States need not rely on a permissive rule and have the right to exercise extraterritorial jurisdiction unless explicitly prohibited by a treaty provision or rule of customary international law." (Stewart 63)

The Five Bases of Jurisdiction:

1. Territoriality: a State has jurisdiction over all crimes occurring within its territory.
   1. Subjective: when the criminal conduct itself occurs within the State's territory.
   2. Objective: when the conduct is committed outside the territory but has a substantial impact within the territory.
2. Nationality (Active Personality): based on the nationality of the perpetrator, and the responsibility a State may have for acts of its citizens, including acts of permanent residents even when they are abroad. 
3. Passive Personality: based on the nationality of the victim; that is, jurisdiction over acts in violation of a State's laws committed outside the State against its nationals.
4. Protective: exercise of jurisdiction over a narrow range of conduct that threatens the State's vital interests — its security, integrity, or core governmental interests, e.g., espionage or counterfeiting currency.
   1. Most famous (and controversial example): trial of Adolf Eichmann in Israel in 1961 for alleged crimes that were neither committed on Israeli territory, nor targeted at Israeli citizens, nor even at Israel. The Israel courts exercised protective jurisdiction by referring to the interests of the Jewish people and thus the Jewish State.
5. Universal: permits any State to prosecute perpetrators of the most serious violations of international law regardless of the nationality of the perpetrator or the victim, the place of commission, or any other connection that particular State.
   1. Universality is "based on the idea that certain international crimes are so heinous that they affect the international legal ortder as a whole, that the perpetrators are therefore enemies of all mankind (hostes humani generis), and that accordingly all members of the international community have the right (perhaps even the obligation) to bring those individuals to justice." (Stewart 76)

QUESTIONS:

1. Is universal jurisdiction incompatible with sovereignty, given that it permits States to prosecute with no connections to the crimes, the offender, or the victim?
2. Do States have an obligation to prosecute violations of peremptory norms?
3. Must a State have custody of an alleged offender or may it prosecute in absentia?
4. Are other (non-prosecuting) States obligated to cooperate, e.g., by providing evidence?

1. Individual Criminal Responsibility: the most fundamental principle of ICL, this is the idea that an individual who commits a crime under international law is personally responsible for that act and is liable to trial and punishment directly under international law, including by an international court.
   
   
2. Legality: individuals may not be prosecuted for conduct that was not unlawful at the time it was committed. In other words, prosecution must be baesd on the alleged violation of a legal norm that existed a the time of the offense.
   
   
3. Command / Superior Responsibility: the imposition of liability on a commander (superior officer) for the most serious wrongful acts of his subordinates, when he ordered those acts to be performed or faile to prevent them from occurring. This rule has been codified in Rome Statute Art. 28, under which military commanders are held responsible for crimes committed by armed forces under their effective command and control, such as rape and any sexual violence used in war. This applies to instances where the commander knew or should have known about such crimes, or failed to take all necessary and reasonable measures to prevent their commission.
   
   
4. No Official Position Immunity: the fact that an accused acted as a "Head of State" (such as a President or King) does not shield that person from individual criminal responsibility.
   
   
5. No Superior Orders Defense: An individual cannot avoid personal responsibility for a crime under IL on the basis that he was merely carrying out the orders of a superior or the laws/policies of his government.

Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal 

Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

...

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. 

Article 6 Genocide

JEAN PAUL AKAYESU

AMENDED INDICTMENT

The Prosecutor of the International Criminal Tribunal for Rwanda, pursuant to his authority under Article 17 of the Statute of the Tribunal, charges:

JEAN PAUL AKAYESU

with GENOCIDE, CRIMES AGAINST HUMANITY and VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as set forth below:

Background

1. On April 6, 1994, a plane carrying President Juvénal Habyarimana of Rwanda and President Cyprien Ntaryamira of Burundi crashed at Kigali airport, killing all on board. Following the deaths of the two Presidents, widespread killings, having both political and ethnic dimensions, began in Kigali and spread to other parts of Rwanda.

2. Rwanda is divided into 11 prefectures, each of which is governed by a prefect. The prefectures are further subdivided into communes which are placed under the authority of bourgmestres. The bourgmestre of each commune is appointed by the President of the Republic, upon the recommendation of the Minister of the Interior. In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure.

The Accused

3. Jean Paul AKAYESU, born in 1953 in Murehe sector, Taba commune, served as bourgmestre of that commune from April 1993 until June 1994. Prior to his appointment as bourgmestre, he was a teacher and school inspector in Taba.

4. As bourgmestre, Jean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect. He had exclusive control over the communal police, as well as any gendarmes put at the disposition of the commune. He was responsible for the execution of laws and regulations and the administration of justice, also subject only to the prefect's authority.

General Allegations

5. Unless otherwise specified, all acts and omissions set forth in this indictment took place between 1 January 1994 and 31 December 1994, in the commune of Taba, prefecture of Gitarama, territory of Rwanda.

6. In each paragraph charging genocide, a crime recognized by Article 2 of the Statute of the Tribunal, the alleged acts or omissions were committed with intent to destroy, in whole or in part, a national, ethnic or racial group.

7. The victims in each paragraph charging genocide were members of a national, ethnic, racial or religious group.

8. In each paragraph charging crimes against humanity, crimes recognized by Article 3 of the Tribunal Statute, the alleged acts or omissions were committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic or racial grounds.

9. At all times relevant to this indictment, a state of internal armed conflict existed in Rwanda.

10. The victims referred to in this indictment were, at all relevant times, persons not taking an active part in the hostilities.

10A. In this indictment, acts of sexual violence include forcible sexual penetration of the vagina, anus or oral cavity by a penis and/or of the vagina or anus by some other object, and sexual abuse, such as forced nudity.

11. The accused is individually responsible for the crimes alleged in this indictment. Under Article 6(1) of the Statute of the Tribunal, individual criminal responsibility is attributable to one who plans, instigates, orders, commits or otherwise aids and abets in the planning, preparation or execution of any of the crimes referred to in Articles 2 to 4 of the Statute of the Tribunal.

Charges

12. As bourgmestre, Jean Paul AKAYESU was responsible for maintaining law and public order in his commune. At least 2000 Tutsis were killed in Taba between April 7 and the end of June, 1994, while he was still in power. The killings in Taba were openly committed and so widespread that, as bourgmestre, Jean Paul AKAYESU must have known about them. Although he had the authority and responsibility to do so, Jean Paul AKAYESU never attempted to prevent the killing of Tutsis in the commune in any way or called for assistance from regional or national authorities to quell the violence.

12A. Between April 7 and the end of June, 1994, hundreds of civilians (hereinafter "displaced civilians") sought refuge at the bureau communal. The majority of these displaced civilians were Tutsi. While seeking refuge at the bureau communal, female displaced civilians were regularly taken by armed local militia and/or communal police and subjected to sexual violence, and/or beaten on or near the bureau communal premises. Displaced civilians were also murdered frequently on or near the bureau communal premises. Many women were forced to endure multiple acts of sexual violence which were at times committed by more than one assailant. These acts of sexual violence were generally accompanied by explicit threats of death or bodily harm. The female displaced civilians lived in constant fear and their physical and psychological health deteriorated as a result of the sexual violence and beatings and killings.

12B. Jean Paul AKAYESU knew that the acts of sexual violence, beatings and murders were being committed and was at times present during their commission. Jean Paul AKAYESU facilitated the commission of the sexual violence, beatings and murders by allowing the sexual violence and beatings and murders to occur on or near the bureau communal premises. By virtue of his presence during the commission of the sexual violence, beatings and murders and by failing to prevent the sexual violence, beatings and murders, Jean Paul AKAYESU encouraged these activities.

13. On or about 19 April 1994, before dawn, in Gishyeshye sector, Taba commune, a group of men, one of whom was named Francois Ndimubanzi, killed a local teacher, Sylvere Karera, because he was accused of associating with the Rwandan Patriotic Front ("RPF") and plotting to kill Hutus. Even though at least one of the perpetrators was turned over to Jean Paul AKAYESU, he failed to take measures to have him arrested.

14. The morning of April 19, 1994, following the murder of Sylvere Karera, Jean Paul AKAYESU led a meeting in Gishyeshye sector at which he sanctioned the death of Sylvere Karera and urged the population to eliminate accomplices of the RPF, which was understood by those present to mean Tutsis. Over 100 people were present at the meeting. The killing of Tutsis in Taba began shortly after the meeting.

15. At the same meeting in Gishyeshye sector on April 19, 1994, Jean Paul AKAYESU named at least three prominent Tutsis -- Ephrem Karangwa, Juvénal Rukundakuvuga and Emmanuel Sempabwa -- who had to be killed because of their alleged relationships with the RPF. Later that day, Juvénal Rukundakuvuga was killed in Kanyinya. Within the next few days, Emmanuel Sempabwa was clubbed to death in front of the Taba bureau communal.

16. Jean Paul AKAYESU, on or about April 19, 1994, conducted house-to-house searches in Taba. During these searches, residents, including Victim V, were interrogated and beaten with rifles and sticks in the presence of Jean Paul AKAYESU. Jean Paul AKAYESU personally threatened to kill the husband and child of Victim U if she did not provide him with information about the activities of the Tutsis he was seeking.

17. On or about April 19, 1994, Jean Paul AKAYESU ordered the interrogation and beating of Victim X in an effort to learn the whereabouts of Ephrem Karangwa. During the beating, Victim X's fingers were broken as he tried to shield himself from blows with a metal stick.

18. On or about April 19, 1994, the men who, on Jean Paul AKAYESU's instructions, were searching for Ephrem Karangwa destroyed Ephrem Karangwa's house and burned down his mother's house. They then went to search the house of Ephrem Karangwa's brother-in-law in Musambira commune and found Ephrem Karangwa's three brothers there. The three brothers -- Simon Mutijima, Thaddée Uwanyiligira and Jean Chrysostome Gakuba -- tried to escape, but Jean Paul AKAYESU blew his whistle to alert local residents to the attempted escape and ordered the people to capture the brothers. After the brothers were captured, Jean Paul AKAYESU ordered and participated in the killings of the three brothers.

19. On or about April 19, 1994, Jean Paul AKAYESU took 8 detained men from the Taba bureau communal and ordered militia members to kill them. The militia killed them with clubs, machetes, small axes and sticks. The victims had fled from Runda commune and had been held by Jean Paul AKAYESU.

20. On or about April 19, 1994, Jean Paul AKAYESU ordered the local people and militia to kill intellectual and influential people. Five teachers from the secondary school of Taba were killed on his instructions. The victims were Theogene, Phoebe Uwineze and her fiance (whose name is unknown), Tharcisse Twizeyumuremye and Samuel. The local people and militia killed them with machetes and agricultural tools in front of the Taba bureau communal.

21. On or about April 20, 1994, Jean Paul AKAYESU and some communal police went to the house of Victim Y, a 68 year old woman. Jean Paul AKAYESU interrogated her about the whereabouts of the wife of a university teacher. During the questioning, under Jean Paul AKAYESU's supervision, the communal police hit Victim Y with a gun and sticks. They bound her arms and legs and repeatedly kicked her in the chest. Jean Paul AKAYESU threatened to kill her if she failed to provide the information he sought.

22. Later that night, on or about April 20, 1994, Jean Paul AKAYESU picked up Victim W in Taba and interrogated her also about the whereabouts of the wife of the university teacher. When she stated she did not know, he forced her to lay on the road in front of his car and threatened to drive over her.

23. Thereafter, on or about April 20, 1994, Jean Paul AKAYESU picked up Victim Z in Taba and interrogated him. During the interrogation, men under Jean Paul AKAYESU's authority forced Victims Z and Y to beat each other and used a piece of Victim Y's dress to strangle Victim Z.

Counts 1-3

(Genocide)

(Crimes against Humanity)

By his acts in relation to the events described in paragraphs 12-23, Jean Paul AKAYESU is criminally responsible for:

COUNT 1: GENOCIDE, punishable by Article 2(3)(a) of the Statute of the Tribunal;

COUNT 2: Complicity in GENOCIDE, punishable by Article 2(3)(e) of the Statute of the Tribunal; and

COUNT 3: CRIMES AGAINST HUMANITY (extermination), punishable by Article 3(b) of the Statute of the Tribunal.

Count 4

(Incitement to Commit Genocide)

By his acts in relation to the events described in paragraphs 14 and 15, Jean Paul AKAYESU is criminally responsible for:

COUNT 4: Direct and Public Incitement to Commit GENOCIDE, punishable by Article 2(3)(c) of the Statute of the Tribunal.

Counts 5-6

(Crimes Against Humanity)

(Violations of Article 3 common to the Geneva Conventions)

By his acts in relation the murders of Juvénal Rukundakuvuga, Emmanuel Sempabwa, Simon Mutijima, Thaddée Uwanyiligira and Jean Chrysostome Gakuba, as described in paragraphs 15 and 18, Jean Paul AKAYESU committed:

COUNT 5: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and

COUNT 6: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.

Counts 7-8

(Crimes Against Humanity)

(Violations of Article 3 common to the Geneva Conventions)

By his acts in relation the murders of 8 detained men in front of the bureau communal as described in paragraph 19, Jean Paul AKAYESU committed:

COUNT 7: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and

COUNT 8: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.

Counts 9-10

(Crimes Against Humanity)

(Violations of Article 3 common to the Geneva Conventions)

By his acts in relation to the murders of 5 teachers in front of the bureau communal as described in paragraph 20, Jean Paul AKAYESU committed:

COUNT 9: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and

COUNT 10 VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.

Counts 11-12

(Crimes Against Humanity)

(Violations of Article 3 common to the Geneva Conventions)

By his acts in relation to the beatings of U, V, W, X, Y and Z as described in paragraphs 16, 17, 21, 22 and 23, Jean Paul AKAYESU committed:

COUNT 11:CRIMES AGAINST HUMANITY (torture), punishable by Article 3(f) of the Statute of the Tribunal; and

COUNT 12:VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(cruel treatment) of the Statute of the Tribunal.

In addition and/or in the alternative to his individual responsibility under Article 6(1) of the Statute of the Tribunal, the accused, is individually responsible under Article 6(3) of the Statute of the Tribunal for the crimes alleged in Counts 13 through 15. Under Article 6(3), an individual is criminally responsible as a superior for acts of a subordinate if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

Counts 13-15

(Crimes Against Humanity)

(Violations of Article 3 common to the Geneva Conventions)

By his acts in relation to the events at the bureau communal, as described in paragraphs 12(A) and 12(B), Jean Paul AKAYESU committed:

COUNT 13:CRIMES AGAINST HUMANITY (rape), punishable by Article 3(g) of the Statute of the Tribunal; and

COUNT 14: CRIMES AGAINST HUMANITY,( other inhumane acts), punishable by Article 3(i) of the Statute of the Tribunal; and

COUNT 15: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ARTICLE 4(2)(e) OF ADDITIONAL PROTOCOL 2, as incorporated by Article 4(e)(outrages upon personal dignity, in particular rape, degrading and humiliating treatment and indecent assault) of the Statute of the Tribunal.

Article 7 Crimes against humanity

Crimes against Humanity pursuant to Article 3 of the Statute of the Tribunal

66. Article 3 of the Statute confers on the Tribunal the jurisdiction to prosecute persons for various inhumane acts which constitute crimes against humanity. The Chamber concurs with the reasoning in the Akayesu Judgement that offences falling within the ambit of crimes against humanity may be broadly broken down into four essential elements, namely:

(a) the actus reus must be inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health

(b) the actus reus must be committed as part of a widespread or systematic attack

(c) the actus reus must be committed against members of the civilian population

(d) the actus reus must be committed on one or more discriminatory grounds, namely, national, political, ethnic, racial or religious grounds.

The Actus Reus Must be Committed as Part of a Widespread or Systematic Attack

67. The Chamber is of the opinion that the actus reus cannot be a random inhumane act, but rather an act committed as part of an attack. With regard to the nature of this attack, the Chamber notes that Article 3 of the English version of the Statute reads "[...] as part of a widespread or systematic attack. [...]". The French version requires that the attack be both of a widespread and systematic nature, whilst the English version requires that the attack be of a widespread or systematic nature and need not be both.

68. The Chamber notes that customary international law requires that the attack be either of a widespread or systematic nature and need not be both. The English version of the Statute conforms more closely with customary international law and the Chamber therefore accepts the elements as set forth in Article 3 of the English version of the Statute and follows the interpretation in other ICTR judgements namely: that the "attack" under Article 3 of the Statute, must be either of a widespread or systematic nature and need not be both. 

69. The Chamber notes that "widespread", as an element of crimes against humanity, was defined in the Akayesu Judgement, as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims, whilst "systematic" was defined as thoroughly organised action, following a regular pattem on the basis of a common policy and involving substantial public or private resources. The Chamber concurs with these definitions and finds that it is not essential for this policy to be adopted formally as a policy of a State. There must, however, be some kind of preconceived plan or policy.

70. The Chamber notes that "attack", as an element of crimes against humanity, was defined in the Akayesu judgement, as an unlawful act of the kind enumerated in Article 3(a) to (i) of the Statute, such as murder, extermination, enslavement, etc. An attack may also be non-violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner may also come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner. The Chamber concurs with this definition.

71. The Chamber considers that the perpetrator must have:

"[...]actual or constructive knowledge ofthe broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan."

The Actus Reus Must be Directed against the Civilian Population

72. The Chamber notes that the actus reus must be directed against the civilian population, if it is to constitute a crime against humanity. In the Akayesu Judgement, the civilian population was defined as people who were not taking any active part in the hostilities. The fact that there are certain individuals among the civilian population who are not civilians does not deprive the population of its civilian character. The Chamber concurs with this definition.

...

The Enumerated Acts

...
78. The Chamber notes that in respect of crimes against humanity, the Accused is indicted for murder and extermination. The Chamber, in interpreting Article 3 of the Statute, will focus its discussion on these offences only.

Murder

79. Pursuant to Article 3(a) of the Statute, murder constitutes a crime against humanity. The Chamber notes that Article 3(a) of the English version ofthe Statute refers to "Murder", whilst the French version of the Statute refers to "Assassinat". Customary International Law dictates that it is the offence of "Murder" that constitutes a crime against humanity and not "Assassinat".

80. The Akayesu Judgement defined Murder as the unlawful, intentional killing of a human being. The requisite elements of murder are:

(a) The victim is dead;

(b) The death resulted from an unlawful act or omission of the accused or a subordinate;

(c) At the rime of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harrn is likely to cause the victim’s death, and is reckless as to whether or not death ensues;

(d) The victim was discriminated against on any one of the enumerated discriminatory grounds;

(e) The victim was a member of the civilian population; and

(f) The act or omission was part of a widespread or systematic attack on the civilian population. 

81. The Chamber concurs with this definition of murder and is ofthe opinion that the act or omission that constitutes murder must be discriminatoryin nature and directed against a member of the civilian population.

Extermination

82. Pursuant to Article 3(c) of the Statute, extermination constitutes a crime against humanity. By its very nature, extermination is a crime which is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction which is not a pre-requisite for murder. 

83. The Akayesu Judgement defined the essential elements ofextermination as follows:

(a) the accused or his subordinate participated in the killing of certain named or described persons;

(b) the act or omission was unlawful and intentional;

(c) the unlawful act or omission must be part of a widespread or systematic attack;

(d) the attack must be against the civilian population; and

(e) the attack must be on discriminatory grounds, namely: national, political, ethnic, racial, or religious grounds.

84. The Chamber concurs with this definition of extermination and is of the opinion that the act or omission that constitutes extermination must be discriminatory in nature and directed against members of the civilian population. Further, this act or omission includes, but is not limited to the direct act of killing. It can be any act or omission, or cumulative acts or omissions, that cause the death of the targeted group of individuals.

Article 8 War crimes

II. Subject-Matter Jurisdiction

45. ...The Defence contends that the charges laid against the accused do not fall within the subject-matter jurisdiction of this Tribunal and it is necessary accordingly to examine the limits of that jurisdiction.

A. Article 2 : Grave Breaches of the Geneva Convention of 1949

46. The Statute of the International Tribunal confers jurisdiction by Articles 1 to 8....

...

48. Article 2 confers subject-matter jurisdiction to prosecute in respect of grave breaches of the Geneva Conventions and identifies those breaches by the phrase, "namely the following acts against persons or property protected under the provisions of the relevant Geneva Conventions." There then follows an enumeration of acts, culled from the four Conventions and, with very slight variations, repeating and in effect consolidating, the terms of the grave breaches provisions to be found in varying form in each of those Conventions.

49. The Article has been so drafted as to be self-contained rather than referential....

50. What is contended is that for Article 2 to have any application there must exist a state of international conflict and that none in fact existed at any relevant time or place. However, the requirement of international conflict does not appear on the face of Article 2. Certainly, nothing in the words of the Article expressly require its existence....

...

52. When what is in issue is what the Geneva Conventions contemplate in the case of grave breaches, namely their prosecution before a national court and not before an international tribunal, it is natural enough that there should be a requirement of internationality; a nation might well view with concern, as an unacceptable infringement of sovereignty, the action of a foreign court in trying an accused for grave breaches committed in a conflict internal to that nation. Such considerations do not apply to the International Tribunal.... They do not apply because the International Tribunal is not in fact, applying conventional international law but, rather, customary international law, as the Secretary-General makes clear in his Report, and is doing so by virtue of the mandate conferred upon it by the Security Council. In the case of what are commonly referred to as "grave breaches", this conventional law has become customary law, though some of it may well have been conventional law before being written into the predecessors of the present Geneva Conventions.

53. It follows that the element of internationality forms no jurisdictional criterion of the offences created by Article 2 of the Statute of the International Tribunal.

...

B. Article 3: Violations of the Laws or Customs of War

57. The Defence contends that the accused may not be tried for violations of laws or customs of war under Article 3 of the Statute because that article is based on the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the regulations thereto of 18 October 1907 ("Hague Convention"), and the 1977 Protocol I, which apply only to an international conflict, and that none, in fact, existed at any relevant time or place. The Prosecutor responds by asserting that the term "laws or customs of war" in Article 3 applies to both international and internal conflict and that the International Tribunal may apply the minimum standards of common Article 3 which are applicable to both international and internal armed conflicts. ...

58. Having considered the position of the parties, the Trial Chamber finds that the character of the conflict, whether international or internal, does not affect the subject-matter jurisdiction of the International Tribunal under Article 3 to try persons who are charged with violations of laws or customs of war.

59. The interpretation of the scope of Article 2 of the Statute is applicable to the view of the Trial Chamber of its subject matter jurisdiction under Article 3. Contrary to the position of the Defence, nothing in the words of Article 3 expressly requires the existence of an international conflict. Indeed, with respect to Article 3, unlike Article 2, there is no mention of any convention. Article 3 simply provides that the International Tribunal "shall have the power to prosecute persons violating the laws or customs of war". A list of prohibitory acts are then set forth in the Article. It is clear that the list is illustrative and not exhaustive, for the list is preceded with the phrase, "such violations shall include, but not be limited to . . ."

60. The competence of the International Tribunal extends to serious violations of international humanitarian law that are a part of customary law. International humanitarian law includes international rules designed to solve humanitarian problems arising from international or non-international armed conflicts. ... Even though the acts enumerated in Article 3 are from the Hague Convention, the term "laws or customs of war" should not be limited to international conflicts. Laws or customs of war include prohibitions of acts committed both in international and internal armed conflicts. Indeed, common Article 3 is clear evidence that customary international law limits the conduct of hostilities in internal armed conflicts. However, unlike contracting parties to treaties, the International Tribunal is not called upon to apply conventional law but instead is mandated to apply customary international law. Therefore, the element of internationality forms no jurisdictional criterion even if the Hague Convention was originally envisaged by the Contracting Parties to apply to international conflicts.

61. Violations of the laws or customs of war are commonly referred to as "war crimes". They can be defined as crimes committed by any person in violation of recognized obligations under rules derived from conventional or customary law applicable to the parties to the conflict. (See L.C. Green, The Contemporary Law of Armed Conflict 276 (1993), ("war crimes are violations of the laws and customs of the law of armed conflict and are punishable whether committed by combatants or civilians, including the nationals of neutral states"). ...

...

64. The Trial Chamber concludes that Article 3 of the Statute provides a non-exhaustive list of acts which fit within the rubric of "laws or customs of war". The offences that it may consider are not limited to those contained in the Hague Convention and may arise during an armed conflict regardless of whether it is international or internal.

...

74. For these reasons, the Trial Chamber finds that the character of the conflict, whether international or internal, does not affect the subject-matter jurisdiction of the Tribunal under Article 3. The term "laws or customs of war", applies to international and internal armed conflicts. The minimum standards of common Article 3 apply to the conflict in the former Yugoslavia and the accused's prosecution for those offences does not violate the principle of nullum crimen sine lege.

A. The Judgement Under Appeal

1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (hereinafter "International Tribunal") is seized of an appeal lodged by Appellant the Defence against a judgement rendered by the Trial Chamber II on 10 August 1995. By that judgement, Appellant's motion challenging the jurisdiction of the International Tribunal was denied.

...

B. Does The Statute Refer Only To International Armed Conflicts?

...

3. Logical And Systematic Interpretation Of The Statute

(a) Article 2

79. Article 2 of the Statute of the International Tribunal provides:

"The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949...."

By its explicit terms, and as confirmed in the Report of the Secretary-General, this Article of the Statute is based on the Geneva Conventions of 1949 and, more specifically, the provisions of those Conventions relating to "grave breaches" of the Conventions. Each of the four Geneva Conventions of 1949 contains a "grave breaches" provision, specifying particular breaches of the Convention for which the High Contracting Parties have a duty to prosecute those responsible. In other words, for these specific acts, the Conventions create universal mandatory criminal jurisdiction among contracting States. Although the language of the Conventions might appear to be ambiguous and the question is open to some debate ..., it is widely contended that the grave breaches provisions establish universal mandatory jurisdiction only with respect to those breaches of the Conventions committed in international armed conflicts. Appellant argues that, as the grave breaches enforcement system only applies to international armed conflicts, reference in Article 2 of the Statute to the grave breaches provisions of the Geneva Conventions limits the International Tribunal's jurisdiction under that Article to acts committed in the context of an international armed conflict. The Trial Chamber has held that Article 2:

"[H]as been so drafted as to be self-contained rather than referential, save for the identification of the victims of enumerated acts; that identification and that alone involves going to the Conventions themselves for the definition of 'persons or property protected'."

[. . . ]

[T]he requirement of international conflict does not appear on the face of Article 2. Certainly, nothing in the words of the Article expressly require its existence; once one of the specified acts is allegedly committed upon a protected person the power of the International Tribunal to prosecute arises if the spatial and temporal requirements of Article 1 are met.

[. . . ]

[T]here is no ground for treating Article 2 as in effect importing into the Statute the whole of the terms of the Conventions, including the reference in common Article 2 of the Geneva Convention [sic] to international conflicts. As stated, Article 2 of the Statute is on its face, self-contained, save in relation to the definition of protected persons and things." (Decision at Trial, at paras. 49-51.)

80. With all due respect, the Trial Chamber's reasoning is based on a misconception of the grave breaches provisions and the extent of their incorporation into the Statute of the International Tribunal. The grave breaches system of the Geneva Conventions establishes a twofold system: there is on the one hand an enumeration of offences that are regarded so serious as to constitute "grave breaches"; closely bound up with this enumeration a mandatory enforcement mechanism is set up, based on the concept of a duty and a right of all Contracting States to search for and try or extradite persons allegedly responsible for "grave breaches." The international armed conflict element generally attributed to the grave breaches provisions of the Geneva Conventions is merely a function of the system of universal mandatory jurisdiction that those provisions create. The international armed conflict requirement was a necessary limitation on the grave breaches system in light of the intrusion on State sovereignty that such mandatory universal jurisdiction represents. State parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over serious violations of international humanitarian law committed in their internal armed conflicts — at least not the mandatory universal jurisdiction involved in the grave breaches system.

81. The Trial Chamber is right in implying that the enforcement mechanism has of course not been imported into the Statute of the International Tribunal, for the obvious reason that the International Tribunal itself constitutes a mechanism for the prosecution and punishment of the perpetrators of "grave breaches." However, the Trial Chamber has misinterpreted the reference to the Geneva Conventions contained in the sentence of Article 2: "persons or property protected under the provisions of the relevant Geneva Conventions." (Statute of the Tribunal, art. 2.) For the reasons set out above, this reference is clearly intended to indicate that the offences listed under Article 2 can only be prosecuted when perpetrated against persons or property regarded as "protected" by the Geneva Conventions under the strict conditions set out by the Conventions themselves. This reference in Article 2 to the notion of "protected persons or property" must perforce cover the persons mentioned in Articles 13, 24, 25 and 26 (protected persons) and 19 and 33 to 35 (protected objects) of Geneva Convention I; in Articles 13, 36, 37 (protected persons) and 22, 24, 25 and 27 (protected objects) of Convention II; in Article 4 of Convention III on prisoners of war; and in Articles 4 and 20 (protected persons) and Articles 18, 19, 21, 22, 33, 53, 57 etc. (protected property) of Convention IV on civilians. Clearly, these provisions of the Geneva Conventions apply to persons or objects protected only to the extent that they are caught up in an international armed conflict. By contrast, those provisions do not include persons or property coming within the purview of common Article 3 of the four Geneva Conventions.

...

83. We find that our interpretation of Article 2 is the only one warranted by the text of the Statute and the relevant provisions of the Geneva Conventions, as well as by a logical construction of their interplay as dictated by Article 2. However, we are aware that this conclusion may appear not to be consonant with recent trends of both State practice and the whole doctrine of human rights — which, as pointed out below (see paras. 97-127), tend to blur in many respects the traditional dichotomy between international wars and civil strife. In this connection the Chamber notes with satisfaction the statement in the amicus curiae brief submitted by the Government of the United States, where it is contended that:

"the 'grave breaches' provisions of Article 2 of the International Tribunal Statute apply to armed conflicts of a non-international character as well as those of an international character." (U.S. Amicus Curiae Brief, at 35.)

This statement, unsupported by any authority, does not seem to be warranted as to the interpretation of Article 2 of the Statute. Nevertheless, seen from another viewpoint, there is no gainsaying its significance: that statement articulates the legal views of one of the permanent members of the Security Council on a delicate legal issue; on this score it provides the first indication of a possible change in opinio juris of States. Were other States and international bodies to come to share this view, a change in customary law concerning the scope of the "grave breaches" system might gradually materialize. Other elements pointing in the same direction can be found....  This judgement indicates that some national courts are also taking the view that the "grave breaches" system may operate regardless of whether the armed conflict is international or internal.

84. Notwithstanding the foregoing, the Appeals Chamber must conclude that, in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts.

Article 8 bis Crime of aggression

It is common to distinguish "direct" from "indirect" participation, and to acknowledge that persons acting together with a common objective may share liability for the overall crime. A distinction is also drawn between those who commit the crime ("principals" or "perpetrators") and those who are otherwise involved or complicit ("accessories" or "accomplices").

Article 25(3) of the Rome Statute defines the six "modes" of participation which entail criminal responsibility: "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the [ICC]" if that person:

(a) Commits such a crime, whether as an individual, jointly with another or
through another person, regardless of whether that other person is criminally
responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs
or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission, including
providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission
of such a crime by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal
purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the
crime;

(e) In respect of the crime of genocide, directly and publicly incites others to
commit genocide;

(f) Attempts to commit such a crime by taking action that commences its
execution by means of a substantial step, but the crime does not occur because
of circumstances independent of the person’s intentions. However, a person
who abandons the effort to commit the crime or otherwise prevents the
completion of the crime shall not be liable for punishment under this Statute
for the attempt to commit that crime if that person completely and voluntarily
gave up the criminal purpose.

Unlike U.S. law, the Romes Statute does not deal separately with joint commission and does not include the concept of conspiracy. But the concept of joint commission has developed in ICL.

Neither conspiracy nor the idea of a "criminal organization" were included in the Statutes of the two ad hoc tribunals. As a result, the ICTY and ICTR struggled to attribute liability in situations involving massive crimes committed by large groups of individuals sharing a common plan or purpose. Their solution was the doctrine of joint criminal enterprise (JCE).

The ICTY Appeals Chamber held that Article 7(1) of its Statute did not prohibit imposing responsibility where several persons have a common purpose act together:

189. An interpretation of the Statute based on its object and purpose leads to the
conclusion that the Statute intends to extend the jurisdiction of the International Tribunal to all those “responsible for serious violations of international humanitarian law” committed in the former Yugoslavia (Article 1). As is apparent from the wording of both Article 7(1) and the provisions setting forth the crimes over which the International Tribunal has jurisdiction (Articles 2 to 5), such responsibility for serious violations of international humanitarian law is not limited merely to those who actually carry out the actus reus of the enumerated crimes but appears to extend also to other offenders (see in particular Article 2, which refers to committing or ordering to be committed grave breaches of the Geneva Conventions and Article 4 which sets forth various types of offences in relation to genocide, including conspiracy, incitement, attempt and complicity).

190. ...Thus, all those who have engaged in serious violations of international humanitarian law, whatever the manner in which they may have perpetrated, or participated in the perpetration of those violations, must be brought to justice. If this is so, it is fair to conclude that the Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions, which are specified below.

191. The above interpretation is not only dictated by the object and purpose of the Statute but is also warranted by the very nature of many international crimes which are committed most commonly in wartime situations. Most of the time these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design. Although only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less – or indeed no different – from that of those actually carrying out the acts in question.

192. Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.

193. This interpretation, based on the Statute and the inherent characteristics of many crimes perpetrated in wartime, warrants the conclusion that international criminal responsibility embraces actions perpetrated by a collectivity of persons in furtherance of a common criminal design. It may also be noted that – as will be mentioned below – international criminal rules on common purpose are substantially rooted in, and to a large extent reflect, the position taken by many States of the world in their national legal systems.