The research thesis investigates the implications of differences in the application of international criminal law (ICL). It assumes a definition of international criminal justice as meaning the prosecution of international crimes. This is at present carried out by different national and international fora. The post cold war conflicts and atrocities in Yugoslavia and Rwanda revived active interest in international criminal justice. More national courts have assumed or been given jurisdiction in addition to that of the international tribunals as the determination to enforce international criminal law (ICL) increased. The international fora currently involved in the enforcement of international criminal law include the International Criminal Court (ICC); ad hoc, hybrid and internationalized tribunals. The implementation of ICL by these multiple fora has not always followed generally applicable guidelines; although it has evolved into a regime in the years following the Nuremberg trials. It may be that the differences among the fora are the inevitable consequence of the decentralized structure of a coherent but somewhat fragmented system. The thesis explores ways to alleviate these differences that undermine the normative coherence of the regime.

The monograph examines the extent to which the differences in the application of the law inhibit its normative coherence. The system may be fragmented if it is implemented by different, independent and competing jurisdictions and so it is necessary to ascertain whether existing international criminal law practice is unorganized, with incoherent parts and differently structured elements. The international system is built to revolve around the politics of state relations. Its laws are often drafted broadly, so that states (as the primary subjects of the system) have some latitude in applying them within their domestic sphere. All of this implied the inevitability of differences in the implementation of international rules by states. It also suggests the influence of politics and the consequent tension which this could generate with justice.

ICL has established norms to prevent and punish atrocities that violate the dignity of humanity. For all that, should not the implementation of international criminal law be expected to be identical, or coherent, at best? It can be argued that the unavoidable differences in the implementation of the law are attributable to a decentralized rather than a fragmented international system. The extent and ways the international criminal justice framework strive for consistency and therefore normative coherence is uncertain. There may however be structural frameworks established to ensure a more balanced application of the substantive law.

The monograph attributes the differences in the implementation of the core norms of ICL and two general principles (Universal Jurisdiction and Immunity) to the discretionary privilege enjoyed by states in international law. International law allows states to choose how they implement international rules in the light of their different domestic contexts. This flexibility permits states to retain some control over issues that are of special interest or concern to them. However, it appears to be an obstacle to the coherent development of ICL as a regime - a regime established by states to address the violation of their common values, especially the dignity of humanity. The system must find a better way to balance the political interests of states (as reflected in their use of their discretionary privileges) and legal considerations (which aim to uphold justice). The book shows why a better balance politics and justice necessary if ICL is to be effective.

CHAPTER 1.A History of Fragmentation and Divergence In Icl

Introduction

1.1. Prosecuting International Crimes after the First World War

1.2. The Emergence of International Criminal Law After the Second World War

1.3. Post-Nuremberg Development of a Regime of Criminal Justice

   1.3.1. The Emergence of Multiple Fora in ICL Enforcement

   1.3.2. The ICC

1.4. General Objectives of International Criminal Justice

   1.4.1. Objectives of ICL as a Re-active System to Serious Crimes

   1.4.2. ICL Objectives in a Proactive System

1.5. Underlying Reasons for Divergence in ICL Implementation

   1.5.1. The Rationale for National Systems of Implementing
       Structure of International Criminal Law
       Differences in Legal Culture

   1.5.2. Contextual Differences of International Institutions
       Ambiguity in the International Law Definition of the Core Crimes

1.6. Conclusions

CHAPTER 2.Scope of Divergence as A Problem in International Criminal Law

Introduction

2.1. The Debate on Divergence in ICL

   2.1.1. The Problem with Sovereignty

   2.1.2. Divergence from the Viewpoint of Selectivity

   2.1.3. The Argument for Systemisation

   2.1.4. The Quest for Coherence under the ICC Regime

2.2. The Scope of Divergence in the Substance of ICL

   2.2.1. Defining the Core International Crimes
       Interpreting the Elements of International Crimes
       Prosecuting International Crimes as Ordinary Crimes
       Divergence in Implementing Legislation of ICC States

2.3. General Principles of International Criminal Law

   2.3.1. Immunity

   2.3.2. Universal Jurisdiction over International Crimes
       Jurisdiction under the ICC

2.3. Conclusions

CHAPTER 3.Legislative Implementation of International Crimes

Introduction

3.1. Problematic Interpretations Consistent with Customary Norms of ICL

   3.1.1. The German Genocide Law

   3.1.2. USA: Different Interpretation of Element of Genocide

   3.1.3. Estonia Penal Code

3.2. Differences in ICC Implementing Legislation

   3.2.1. The ICC Position as a Codification or Progressive Instrument

   3.2.2. Implementing Legislation going beyond ICC Requirements
       War Crimes
       Crimes Against Humanity
       Genocide

3.3. Implementing Legislation Narrower Than the ICC Requirements

3.4. Problematic Approaches that Appear Incompatible with Existing ICL

   3.4.1. War Crimes in the USA’s Military Commission Act, 2006.
       The Post-9/11 Context and the Birth of MCA 2006
       Uncertainty over the Status of the Detainees
       The Military Commission Act 2006
       No Distinction in Treatment of Detainees under Common Article 3
       Inhuman Treatment
       Torture: Defining Cruel or Inhuman Treatment

   2.3.2. Universal Jurisdiction over International Crimes Jurisdiction under the ICC

3.5. Conclusion

CHAPTER 4.Judicial Implementation of International Crimes

Introduction

   4.1.1. Genocide Case in Germany
       Jurisdictional Limitations
       Interpreting the Elements of the Crime

   4.1.2. Estonia: The Paulov Case

   4.1.3. The Kononov Case
       Contextual and Political Considerations
       Customary Law on Civilians Status in War
       Violence against Female Non Combatants
       The Defence of Reprisals

   4.1.1. Genocide Case in Germany
       Jurisdictional Limitations
       Interpreting the Elements of the Crime

4.2. Prosecuting International Crimes as Ordinary Domestic Crimes

   4.2.1. Debate on Consistency with International Law

   4.2.2. Assessing the Consistency of the Approach with ICL
       Impunity for International Crimes
       Gravity of International Crimes

4.3. Prosecutions under The ICC Regime in National Courts

   4.3.1. Prosecuting Iraq War Crimes under the ICC Implementation Act

   4.3.2. The Massaba Case: Democratic Republic of Congo (DRC)

   4.3.3. The Prosecution of Munyaneza in Canada

4.4. Conclusions

CHAPTER 5.Selected General Principles I: Universal Jurisdiction

Introduction

5.1. An Overview of Universal Jurisdiction

   5.1.1. Jurisdiction in International Law

   5.1.2. Universal Jurisdiction from Piracy to International Crimes

   5.1.3. Challenges to Extending Universal Jurisdiction to International Crimes

   5.1.4. Competence to Exercise Universal Jurisdiction

5.2. Various Approaches on Exercising Universal Jurisdiction

5.3. State Practice before the ICC Regime

   5.3.1. Spanish Courts and the Exercise of Universal Jurisdiction
       The Pinochet Case
       The Guatemala Generals Case

   5.3.2. Universal Jurisdiction in Belgium
       Aguilar Diaz et al v. Pinochet
       Butare Four Case (Public Prosecutor v. Higaniro et al.)
       The Change in Belgium’s Approach

   5.3.3. Conditional Approaches in Other States

   5.3.4. Decline of the Unconditional Approach

5.4. Universal Jurisdiction under the ICC Regime

5.5. Conclusions

CHAPTER 6.Selected General Principles Ii: Immunity

Introduction

6.1. Immunity in Domestic Courts

  6.1.1. National Immunity as an Impediment to International Criminal Justice
       The Immunity of Senator Pinochet
       Immunity Of Yerodia Ndombasi
       The Immunity of Other officials in the USA [MCA 2006]

6.2. Immunity Of Foreign State Officials Before Domestic Courts

  6.2.1. Immunity Ratione Personae

  6.2.2. Immunity Ratione Materiae

6.3. Immunity in International Criminal Tribunals

  6.3.1. The ICC Statute’s Immunity Provisions
       Provisions on Arrest and Surrender
       The Position of State Parties and Non Parties
       The Al-Bashir Case

6.4. Conclusion

CHAPTER 7.Conclusions

7.1. Proposal for Balance

7.2. Balance through ICC as an Impartial Arbiter