The pluralism of international criminal law

Indiana Law Journal

Volumn 86, Issue 3, 2011, Pages 1063-1130

  Greenawalt, Alexander K A ^a  

^a PACE UNIVERSITY   (United States)

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EID: 79959208375     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (386)

1. See Prosecutor v. Erdemović, Case No. IT-96-22-Tte, Sentencing Judgement, ¶¶1-4 (Int'l Crim. Trib. for the Former Yugoslavia Mar. 5, 1998);
2. Stephen Engelberg, U.N. Prosecutor Asks Serbs to Hand Over War-Crimes Suspect, N.Y. TIMES, Mar. 8, 1996, at A7.
3. Erdemović, Case No. IT-96-22bis, Sentencing Judgement, ¶¶5-6.
4. See Prosecutor v. Erdemović, Case No. IT-96-22-A, Judgement, ¶ 11 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7,1997).
5. Erdemović, Case No. IT-96-226m, Sentencing Judgment, ¶ 13 ("The parties were agreed on the facts.... [T]he Trial Chamber accepts as fact the version of events which the parties have submitted, that is that the facts alleged in the indictment and the version of events described by the accused in his previous testimonies are statements of fact.").
6. Id. ¶ 17.
7. See id.
8. Id. ¶ 16.
9. Id. ¶ 14.
10. Id.
11. Id.
12. Id. ¶ 15.
13. See Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 51 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997) ("[D]uress, either as a general notion or specifically as it applies to murder, is not contained in any international treaty or instrument.. . .");
14. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶ 11 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997);
15. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li, ¶ 2 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997);
16. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Stephen ¶ 13 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7,1997).
17. See, e.g., Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 43. In particular, the Joint Separate Opinion concluded that "the only express affirmation of the availability of duress as a defence to the killing of innocent persons in post-World War Two military tribunal cases appears in the Einsatzgruppen case before a United States military tribunal." Id.
18. (citing United States v. Ohlendorf ("Einsatzgruppen"), 4 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 3 (U.S. Gov't Printing Office 1951) [hereinafter T.W.C.]). The opinion further noted, however, that this decision "did not cite any authority for its opinion that duress may constitute a complete defence to killing an innocent individual." Id. ¶ 43. With respect to other precedents invoked by the defense, the Joint Separate Opinion reasoned that the cases were either distinguishable based on the nature of the accusation or too unclear in their reasoning to provide guidance in the case at hand. Id. ¶¶ 47-48 (collecting cases). In addition, the opinion concluded that the post-World War II military tribunals generally resorted to national rather than international law with respect to the specific question of duress. Id. H 54 ("[T]here was no provision in either the 1945 London Charter or in Control Council Law No. 10 which addressed the question of duress either generally or as a defence to the killing of innocent persons. Consequently, when these tribunals had to determine that specific issue, they invariably drew on the jurisprudence of their own national jurisdictions. This is evidenced by the fact that British military tribunals followed British law and the United States military tribunals followed United States law.").
19. See, e.g., id. ¶ 59 (surveying national laws and concluding that "[t]he penal codes of civil law systems, with some exceptions, consistently recognise duress as a complete defence to all crimes").
20. See, e.g., id. ¶ 43 ("The laws of all but a handful of state jurisdictions in the United States definitively reject duress as a complete defence for a principal in the first degree to murder."); id. ¶ 49 (noting that some U.S. states had accepted the defense of duress as a general defense for all crimes); id. (noting that British and Canadian military tribunals had rejected the defense).
21. See Prosecutor v. Erdemović, Case No. IT-96-22-A, Judgment, ¶ 17 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997) ("[T]he members of the Appeals Chamber differ on a number of issues, both as to reasoning and as to result. Consequently, the views of each of the members of the Appeals Chamber on particular issues are set out in detail in Separate Opinions ....").
22. Id. ¶¶ 19-21. On remand, the Trial Chamber reduced Erdemović's sentence to five years. See Prosecutor v. Erdemović, Case No. IT-96-22-T6k, Sentencing Judgment, ¶ 23 (Int'l Crim. Trib. for the Former Yugoslavia Mar. 5,1998).
23. See infra notes 61-66; infra Part IV.A.-B.
24. As in the Erdemović Appeals Chamber opinions, this view often reveals itself as a background assumption, needing no specific interrogation. For authorities specifically highlighting the value of uniform ICL in various contexts, see, for example, Prosecutor v. Delalić, Case No. IT-96-21-A, Judgment ¶ 756 (Int'l Crim. Trib. for the Former Yugoslavia Feb. 20, 2001) ("One of the fundamental elements in any rational and fair system of criminal justice is consistency in punishment.");
25. Robert Cryer, Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources, 12 New Crim. L. Rev. 390, 394 (2009) (advocating the "judicial wing of the ICC promoting an integrated, consistent regime of international criminal law");
26. Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CALIF. L. Rev. 75, 96-97 (2005) (arguing that judges should construe both substantive and procedural aspects of international criminal law consistently in order to develop ICL's legitimacy);
27. Margaret McAullife deGuzman, Article 21, in Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article 701, 710 (Otto Triffterer ed, 2d ed. 2008) [hereinafter deGuzman, Article 21] (arguing that the International Criminal Court's resort to general principles of law under Article 21 of the Rome Statute "should be determined on the basis of international law rather than a case by case determination of a particular State's rules of jurisdiction. A particularized approach would undermine the consistent application of the law to different accused.");
28. David S. Koller, The Faith of the International Criminal Lawyer, 40 N.Y.U. J. Int'l L. & Pol. 1019, 1026 n.l6 (2008) (noting that the developed and recognized justification for international criminal law is an outgrowth of human rights law, and that such law must be applied consistently);
29. Inés Mónica Weinberg de Roca & Christopher M. Rassi, Sentencing and Incarceration in the Ad Hoc Tribunals, 44 Stan. J. Int'l. L. 1, 8 (2008) (appealing to "fundamental principals [sic] of criminal law, including the tenet that similar cases should be treated alike").
30. As I discuss below, Judge Antonio Cassese's dissenting opinion did contemplate the application of domestic law as "a last resort." Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶ 49 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7,1997); see infra text accompanying notes 75-76; infra text accompanying note 182.
31. See supra note 19.
32. See Convention on the Prevention and Punishment of the Crime of Genocide art. I, Dec. 9, 1948,102 Stat. 3045,78 U.N.T.S. 277 [hereinafter Genocide Convention].
33. See generally Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155 (2007).
34. See Rome Statute of the International Criminal Court art. 17, opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute] (providing that the ICC shall only exercise jurisdiction if a state is " unwilling" or "unable" itself to prosecute).
35. See, e.g., Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 137 [hereinafter Sierra Leone Statute]; Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, June 6, 2003, 2329 U.N.T.S. 117 [hereinafter ECCC Statute]; S.C. Res. 1272, U.N. Doc. S/RES/1272 (Oct. 25, 1999) (United Nations Security Council's creation of a Special Transitional Administration in East Timor); S.C. Res. 1757, Annex, U.N. Doc. S/RES/1757 (May 30, 2007) [hereinafter Lebanon Statute] (United Nations Security Council's creation of a Special Tribunal for Lebanon).
36. See, e.g., Mark A. Drumbl, Atrocity, Punishment, and International Law (2007);
37. Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Ruth Mackenzie, Cesare P.R. Romano & Philippe Sands eds, 2008);
38. Jo Stigen, The Relationship Between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (2008);
39. José E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int'l L. 365 (1999);
40. Elena Baylis, Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks, 50 B.C. L. Rev. 1 (2009);
41. William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 harv. Int'l L.J. 53 (2008);
42. William W. Burke-White, International Legal Pluralism, 25 MICH. J. Int'l L. 963 (2004);
43. Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 MICH. L. Rev. 985 (2007).
44. See Alexander K.A. Greenawalt, Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. int'l L. 107 (2009) [hereinafter Greenawalt, Complementarity];
45. Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int'l L. & pol. 583 (2007) [hereinafter Greenawalt, Justice].
46. See infra Part III.E.
47. See, e.g., Steven R. Ratner, Jason S. Abrams & James L. Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 12-13 (3d ed. 2009) (noting that to the extent it "addressfes] accountability of the individual for [its] violation," human rights law "overlap[s] with international criminal law").
48. Beth Van Schaack & Ronald C. Slye, International Criminal Law and Its Enforcement: Cases and Id. at erials 1 (2d ed. 2010); see also Ratner et al, supra note 29, at 10 ("For our purposes, the term refers broadly to the international law assigning criminal responsibility for certain particularly serious violations of international law.").
49. David Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law 5 (Georgetown Univ. Law Ctr, Working Paper No. 1154117, 2008), available at http://ssrn.com/abstract=l154177.
50. Genocide Convention, supra note 22, at art. I.
51. Id.
52. See, e.g., Rome Statute, supra note 24, at art. 7.
53. Id. at art. 8.
54. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,1984,1465 U.N.T.S. 85.
55. See United Nations Convention on the Law of the Sea, art. 101, Dec. 10, 1982,1833 U.N.T.S. 397.
56. See Rome Statute, supra note 24, at art. 5; Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, and Charter of the International Military Tribunal, art. 6, Aug. 8, 1945,59 Stat. 1544, 82 U.N.T.S. 279.
57. See Van Schaack & Slye, supra note 30, at 1.
58. London Charter of the International Military Tribunal art. 6, Aug. 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279 [hereinafter London Charter]; Charter of the International Military Tribunal for the Far East, Jan. 19,1946, T.I.A.S. No. 1589,4 Bevans 20.
59. See S.C. Res. 827, ¶ 2, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute] (establishing the ICTY).
60. See S.C. Res. 955, ¶ 1, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute] (establishing the International Criminal Tribunal for Rwanda (ICTR)).
61. See supra note 25.
62. See Rome Statute, supra note 24.
63. See Sierra Leone Statute, supra note 25, arts. 2-4; Rome Statute, supra note 24, at arts. 5-8; ECCC Statute, supra note 25 arts. 4-6; ICTR Statute, supra note 42, at arts. 2-4; ICTY Statute, supra note 41, at arts. 2-5.
64. See Rome Statute, supra note 24, at art. 5.
65. See, e.g., Sierra Leone Statute, supra note 25, art. 5 (crimes under Sierra Leonean Law); ECCC Statute, supra note 25, art. 3.
66. 18 U.S.C. § 1651 (2006).
67. See generally Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (Stephen Macedo ed, 2004).
68. London Charter of the International Military Tribunal art. 6, Aug. 8, 1945, 59 Stat. 1544,1547, 82 U.N.T.S. 279 [hereinafter London Charter].
69. See Jonathan A. Bush, "The Supreme. .. Crime" and Its Origins: The Lost Legislative History of the Crime of Aggressive War, 102 colum. L. Rev. 2324 (2002);
70. Beth Van Schaack, The Definition of Crimes Against Humanity: Resolving the Incoherence, 37 Colum. J. Transnat'L L. 787 (1999) [hereinafter Van Schaack, Definition of Crimes Against Humanity].
71. See London Charter, supra note 50, at arts. 7-9; Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir 36(1992) ("The Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war."). Post-Nuremberg tribunals have excluded direct reference to conspiracy outside the context of genocide.
72. See Per Saland International Criminal Law Principles, in The International Criminal Court: The Making of the Rome Statute 189, 199 (Roy S. Lee ed, 1999) (noting with respect to the drafting of the International Criminal Court's statute that "[a]nother very divisive issue ... was conspiracy, a concept strongly advocated by common law countries but unknown in some civil law systems").
73. The Judgment of the International Military Tribunal at Nuremberg, for instance, provided only brief and summary explanations of its verdicts with regard to each of the tribunal's twenty-two defendants. More broadly, efforts to derive rules of customary international law from World War Il-era cases have commonly struggled with the lack of reasoning in key decisions. See, e.g., Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 201 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998) (for purposes of identifying elements of aiding and abetting, noting that the British military court decision in Trial of Schonfeld and Nine Others "did not make clear the grounds on which it found [three of the accused] to have been 'concerned in the killing'");
74. Case No. 002/19-09-2007-ECCC/OCIJ (PTC 38), Public Decision on the Appeals Against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE), ¶ 75 (Extraordinary Chambers in the Courts of Cambodia May 20, 2010) (noting that ICTY jurisprudence concerning extended forms of joint criminal enterprise as a mode of criminal liability relied on military court cases in which "the military courts only issued a simple guilty verdict and made no extensive legal finding on the issue of common plan or mob beatings"); supra note 13 (Erdemović case).
75. See ICTR Statute, supra note 42; ICTY Statute, supra note 41.
76. See Prosecutor v. Furundiija, Case No. IT-95-17/1-A, Declaration of Judge Patrick Robinson, ¶ 281 at n.10 (Int'l Crim. Trib. for the Former Yugoslavia July 21, 2000);
77. Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Declaration of Judge David Hunt, ¶ 2 at n.l (Int'l Crim. Trib. for the Former Yugoslavia Mar. 24, 2000);
78. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 40 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
79. Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055 [hereinafter ICJ Statute].
80. See Benjamin Perrin, Searching for Law While Seeking Justice: The Difficulties of Enforcing Humanitarian Law in International Criminal Trials, 39 ottawa L. rev. 367, 372-73 (2007-2008) ("The implications of the modern ad hoc tribunals incorporating these public international law concepts into international criminal law have been largely ignored.").
81. See Anthony A. D'Amato, The Concept of Custom in International Law 49 (1971);
82. Lassa Oppenheim, International Law 22 (2d ed. 1912) ("Jurists speak of a custom, when a clear and continuous habit of doing certain actions has grown up under the asgis of the conviction that these actions are legally necessary or legally right.").
83. See generally Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 Iowa L. Rev. 65, 76-77 (2007) (summarizing controversies concerning the identification of custom);
84. Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 Am. J. Int'l L. 757, 757-60 (2001) (distinguishing between traditional and modern approaches to customary international law).
85. See, e.g., Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, ¶¶ 191, 193 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998) (identifying standards of aiding and abetting liability based on World War II-era case law after reasoning that "[s]ince no treaty law on the subject exists, the Trial Chamber must examine customary international law in order to establish the content of this head of criminal responsibility" and "[i]t therefore becomes necessary to examine the case law").
86. See, e.g., Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 77 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7,1997) (appealing to policy considerations).
87. The ICTY Appeals Chamber first announced this doctrine in the Tadic case. See Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment (Int'l Crim. Trib. for the Former Yugoslavia July 15, 1999). Pursuant to this mode of participation, an accused is held criminally responsible for an international crime based on his or her participation, with the requisite mens rea, in a common plan among a plurality of persons to commit the crime. See id. ¶¶ 227-28. Most controversially, the Court held that participants in a JCE are also liable for crimes outside the common plan committed by other members of the group so long as the commission of the offense was foreseeable and the accused knowingly took the risk of its occurrence. Id. ¶ 228.
88. On the controversy surrounding the ICTY's development of JCE, see, for example, Mark Osiel, Making Sense of Mass Atrocity 48-90 (2009); Danner & Martinez, supra note 19;
89. Verena Haan, The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia, 5 Int'l Crim. L. Rev. 167 (2005);
90. David L. Nersessian, Whoops, I Committed Genocide! The Anomaly of Constructive Liability for Serious International Crimes, 30 fletcher F. world Aff. 81 (2006);
91. Jens David Ohlin, Joint Criminal Confusion, 12 New Crim. L. Rev. 406 (2009);
92. Jens David Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise, 5 J. Int'l Crim. Just. 69 (2007);
93. Steven Powles, Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?, 2 J. Int'l Crim. Just. 606 (2004);
94. Darryl Robinson, The Identity Crisis of International Criminal Law, 21 leiden J. Int'L L. 925 (2008).
95. See Prosecutor v. BlaSkid, Case No. IT-95-14-A, Judgment (Int'l Crim. Trib. for the Former Yugoslavia July 29, 2004);
96. Prosecutor v. Delalid, Case No. IT-96-21-A, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Feb. 20, 2001).
97. See generally Mirjan DamaSka, The Shadow Side of Command Responsibility, 49 Am. J. Comp. L. 455 (2001); Danner & Martinez, supra note 19. (Pubitemid 33648812)
98. See Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 137 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2,1995).
99. See, e.g., Prosecutor v. Nahimana, Barayagwiza & Ngeze, Case No. ICTR 99-52-A, Judgment, ¶ 1057 (Nov. 28, 2007) ("[T]he Appeals Chamber is of the opinion that, in view of the gravity of the crimes in respect of which the Tribunal has jurisdiction, the two main purposes of sentencing are retribution and deterrence; the purpose of rehabilitation should not be given undue weight.");
100. Sharham Dana, Genocide, Reconciliation and Sentencing in the Jurisprudence of the ICTY, in the Criminal Law of Genocide 259, 261 (Ralph Henham & Paul Behrens eds, 2007) ("Some trial chambers added two more principles to create 'four parameters' for international sentencing: retribution, deterrence, rehabilitation, and protection of society.").
101. Perrin, supra note 57, at 388.
102. See Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 51 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997) ("[DJuress, either as a general notion or specifically as it applies to murder, is not contained in any international treaty or instrument. .. .");
103. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶ 11 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997);
104. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li, ¶ 2 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997);
105. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Stephen, ¶ 13 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
106. See Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶¶ 43-48;
107. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li, ¶¶ 3-10.
108. See Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶¶ 11-12; id. ¶ 50 (concluding that "whether the execution ... was proportionate to the harm. .. sought to [be] avoid[ed]" is a necessary element of the duress rule (emphasis added)).
109. Id. ¶ 19.
110. Id. ¶ 11.
111. See, for instance, Perrin, supra note 57, at 386, who argues: The logic applied by Judge Cassese on this point is questionable. It could just as easily be argued that a general rule of international criminal law is that the individual criminal responsibility of an accused can only be justified or excused based on a defence recognized under international law. Since duress is not recognized as a defence to the offences charged, and Judge Cassese falls short of finding a specific rule permitting duress as a defence to the killing of innocent persons, then the purported defence would not exist. Id.
112. See, e.g., George P. Fletcher & Jens David Ohlin, Reclaiming Fundamental Principles of Criminal Law in the Darfur Case, 3 J. Int'l crim. just. 539, 556 (2005) (identifying "fundamental concerns that lead us vigorously to oppose the reliance on [customary international law] as [a] means of inculpation in criminal prosecutions, whether in domestic courts or international courts"); Robinson, supra note 62.
113. See, e.g., Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 196 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998) (determining principles of aiding and abetting liability based on review of international tribunal case law and observing that British military court case law applying domestic law is "less helpful in establishing rules of international law on this issue");
114. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶ 3 ("[T]he traditional attitude of international courts to national-law notions suggests that one should explore all the means available at the international level before turning to national law.").
115. See Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶ 49.
116. Id. ¶ 11.
117. Id. ¶ 49.
118. ICTR Statute, supra note 42, at art. 23;
119. ICTY Statute, supra note 41, at art. 24.
120. See, e.g., Prosecutor v. Nahimana, Barayagwiza & Ngeze, Case No. ICTR-99-52-A, Judgment, ¶ 1063 (Nov. 28, 2007) ("The Trial Chamber is therefore 'entitled to impose a greater or lesser sentence than that which would have been imposed by the Rwandan courts.'"
121. (quoting Semanza v. Prosecutor, Case No. ICTR-97-20-A, Appeal Judgment, ¶ 393 (May 20, 2005)));
122. Prosecutor v. Jokic, Case No. IT-01-42/1-A, Judgment on Sentencing Appeal, ¶ 38 (Int'l Crim. Trib. for the Former Yugoslavia Aug. 30, 2005) ("[The Statute] 'does not oblige the Trial Chambers to conform to [Yugoslav sentencing] practice; it only obliges the Trial Chambers to take account of that practice.'"
123. (quoting Omar Serushago v. Prosecutor, Case No. ICTR-98-39-A, Sentencing Appeal Judgment, ¶ 30 (Apr. 6,2000))).
124. See Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgment, ¶ 681 (Int'l Crim. Trib. for the Former Yugoslavia July 29, 2004) ("[T]he International Tribunal can impose a sentence in excess of that which would be applicable under relevant law in the former Yugoslavia, and the Appeals Chamber has held that this sentencing practice does not violate the principle of nulla poena sine lege because an accused must have been aware that the crimes for which he is indicted are the most serious violations of international humanitarian law, punishable by the most severe of penalties." (citation omitted)).
125. The Court's jurisdiction is generally limited to crimes committed on the territory of, or by a citizen of, one of its 114 States Parties, see Rome Statute, supra note 24, at art. 12, but a referral from the U.N. Security Council removes that restriction, see id. at art. 13.
126. See id. at arts. 5-10. In particular, the statute eschews its predecessors' open-ended mandate to prosecute unenumerated "violations of the laws and customs of war." London Charter, supra note 50, at art. 6; see also ICTY Statute, supra note 41, at art. 3. Instead it provides detailed lists - one for international conflicts and another for internal conflicts - of prosecutable war crimes. Rome Statute, supra note 24, at art. 8. The definition of crimes against humanity also receives further refinement, including an expanded list of acts that qualify for prosecution under this category, provided they are committed as part of a "widespread or systematic attack directed against any civilian population." Id. at art. 7.
127. See Rome Statute, supra note 24, at arts. 22-33.
128. Id. at art. 30.
129. Id. atari. 25.
130. Id. atart.31(l)(d).
131. Id. at art. 31.
132. See Claus Kreß, The International Criminal Court as a Turning Point in the History of International Criminal Justice, in The Oxford Companion to International Criminal Justice 143, 146 (Antonio Cassese ed, 2009) ("Th[e] unprecedented emphasis on the legality principle [in the Rome Statute] should not detract from the fact that the ICC definitions of crimes are nevertheless vague in many respects. Judges interpreting these definitions will therefore need to flesh out and concretize the precise scope of these crimes.")
133. See Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, ¶¶ 322-67 (Jan. 29, 2007). Notably, this decision declined to embrace the more expansive concept of perpetrator liability recognized by the ICTY under the category of "joint criminal enterprise." Id. VI329-30 (contrasting the ICTY's "subjective approach" according to which "those who make their contribution with the shared intent to commit the offence can be treated as principals to the crime, regardless of the level of their contribution to its commission" with "the concept of control over the crime" according to which those who "control or mastermind [the crime's] commission" are treated as principals). The Pre-Trial Chamber's analysis focused on the assignment of principal liability and did not therefore determine the boundaries of accessory liability under the Rome Statute. See id. VI 336-37 (distinguishing coperpetrator liability from the "residual form of accessory liability" provided for by Article 25(3)(d) of the Rome Statute). For additional precedents concerning co-perpetrator liability, see Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (June 15, 2009);
134. Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of Charges (Sept. 30,2008). The ICC's Appeals Chamber has yet to rule on these issues.
135. Rome Statute, supra note 24, at art. 25(3)(a).
136. Compare Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, ¶ 344 (interpreting statutory definition of intent to encompass situations in which "co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a non-criminal goal) will result in the commission of the crime, and (b) accept such an outcome"), with Bemba Gombo, Case No. 1CC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶¶ 357-60 (ruling that the statutory standard of "intent" and "knowledge" excludes liability based on "dolus eventualis. . ., recklessness or any lower form of culpability" and encompasses only situations in which the suspect either "carries out... acts or omissions with the purposeful will (intent) or desire to bring about those material elements of the crime" or with the "aware[ness] that those elements will be the almost inevitable outcome of his acts or omissions"). The cited portions of these decisions concern Article 30 of the Rome Statute, which provides the default mens rea requirement of intent and knowledge applicable "[u]nless otherwise provided." See Rome Statute, supra note 24, at art. 30(1). This standard does not therefore have force with respect to determinations for which the Statute explicitly provides a lower mens rea standard. See, e.g., id. at art. 28(a)(i) (providing for liability of military commanders for failure to prevent or repress the crimes of subordinates in cases where the commander "either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes").
137. Rome Statute, supra note 24, at art. 77(1)(b).
138. Id. at art. 77(1 )(a).
139. Id. at art. 78(1).
140. International Criminal Court [ICC], Rules of Procedure and Evidence, R. 145, ICC Doc. ICC-ASP/1/3 (Sept. 10, 2002) [hereinafter ICC Rules of Procedure], available at http://www.icc-cpi.int/NR/rdonlyres/FlE0AClC-A3F3-4A3C-B9A7- B3E8B115E886/140164/Rules-of-procedure-and-Evidence-English.pdf.
141. Rome Statute, supra note 24, at art. 17(1 )(a).
142. Compare Rome Statute, supra note 24, at art. 25(3)(c) (holding culpable those who aid or abet the commission of a crime within the court's jurisdiction "[fjor the purpose of facilitating the commission of such a crime")
143. with Prosecutor v. Furundiija, Case No. IT-95-17/1-T, Judgment, ¶ 249 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10,( 1998) (holding "the legal ingredients of aiding and abetting in international criminal law to be the following: the actus reus consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime " and that "the mens rea required is the knowledge that these acts assist the commission of the offence").
144. See Rome Statute, supra note 24, at art. 28;
145. see also Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 423 n.550 June 15, 2009) ("acknowledg[ing] that the ad hoc tribunals do not recognise causality as an element of superior responsibility");
146. Greg R. Vetter, Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC), 25 Yale J. Int'l L. 89 (2000).
147. Rome Statute, supra note 24, at art. 10.
148. Id. at art. 21 (a).
149. Id.
150. International Criminal Court [ICC], Elements of Crimes, ICC Doc. ICC-ASP/l/3(part II-B) (Sept. 9, 2002) [hereinafter ICC Elements of Crimes], available at http://www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B- 68E5F9082543/0/Element-of-Crimes-English.pdf.
151. ICC Rules of Procedure, supra note 95.
152. Rome Statute, supra note 24, at art. 21 (1)(b).
153. Id. atart. 21(l)(c).
154. See deGuzman, Article 21, supra note 19, at 710.
155. See Perrin, supra note 57, at 400. Perrin concludes that, based on the drafting history: Article 21(c) would operate to fill gaps first by considering legal systems (or traditions) of the world seeking broad consensus. If judges do not find such agreement, as in Erdemović, then they would examine the smaller subset of national laws that would ordinarily apply on the facts of the particular case. While there could be multiple national laws applicable, in cases of non-international armed conflicts it is conceivable that only one state would normally have jurisdiction. Id.
156. Despite various international instruments dealing with the criminalization of terrorism, drug smuggling, slavery, and human trafficking, efforts to establish these offenses as stand-alone ICL crimes have thus far failed to attract universal acceptance. See Ratner et al, supra note 29, at 114 - 40. Notwithstanding widespread exercise of universal jurisdiction by states over the crime of piracy, Antonio Cassese has reasoned that because piracy, in his view, does not implicate a "community value," it does not rise to the level of a true international crime. Antonio Cassese, International Criminal Law 12 (2d ed. 2008) (emphasis omitted).
157. The definition of crimes against humanity, in particular, has undergone a dramatic evolution from its initial codification in the London Charter to its more recent codification in the Rome Statute of the International Criminal Court. See Ratner et al, supra note 29, at 48-81. The Rome Statute definition includes an expanded list of criminal offenses, including "enforced disappearance of persons" and "the crime of apartheid," and it affirms ICTY and ICTR in holding that crimes against humanity are defined by a nexus to a "widespread or systematic attack against any civilian population," rather than by a nexus to an armed conflict. See Rome Statute, supra note 24, at art. 7(1);
158. see also Van Schaack, Definition of Crimes Against Humanity, supra note 51, at 793 n.22, 827 n.191. This definition of the offense necessarily invites inquiry into how broadly to interpret the required "widespread or systematic attack." Although the ICC has yet to produce a conviction for crimes against humanity, its early case law reveals particular disagreement over whether or not the perpetrators of crimes against humanity must be states or "state-like" actors. Compare Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in Kenya, 51 Mar. 31, (2010) (Dissenting Opinion of Judge Hans-Peter Kaul) (interpreting Rome Statute requirement that crimes against humanity are "pursuant to state or organizational policy" to require involvement of an "entity which may act like a State or has quasi-State abilities"), with id. H 90 (Majority Opinion) ("Whereas some have argued that only State-like organizations may qualify, the Chamber opines that the formal nature of a group and the level of its organization should not be the defining criterion. Instead, as others have convincingly put forward, a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values." (footnote omitted)).
159. For arguments expanding the notion of crimes against humanity beyond its traditional application to mass atrocities, see, for example, Doe v. Alvaro Rafael Saravia, 348 F. Supp. 2d 1112, 1157 (E.D. Cal. 2004), ruling that the assassination of Salvadoran Archbishop constituted a crime against humanity under customary international law.
160. See generally Sonja B. Starr, Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations, 101 Nw. U. L. Rev. 1257 (2007) (arguing that the Rome Statute of the International Criminal Court should be interpreted to apply to systemic human rights violations untethered to mass atrocity or war).
161. See supra note 109 and accompanying text.
162. See, e.g., Jeffrey Dunoff, Steven R. Ratner & David Wippman, International Law, Norms, Actors, Process: A Problem Oriented Approach 536 (3d ed. 2010) ("In keeping with the traditional position that international law applies only in the relations between states, the laws of war historically applied only to international armed conflicts.");
163. George P. Fletcher Romantics at War: Glory and Guilt in the Age of Terrorism 44 (2002) [hereinafter Fletcher, Romantics] ("Traditionally, international law addressed the behavior of states. The state is a collective reduced to a person, a sovereign, a single entity that can take its place alongside the other sovereigns in the law of nations. As all human beings are created equal, all states are equal subjects in international law.");
164. Ratner et al, supra note 29, at 4 ("As defined by the positivist school that dominated the field from the late eighteenth century, [international law] governed principally relations between states (and between their sovereigns), with individuals usually at best third-party beneficiaries.").
165. See, e.g., Sean Watts, Reciprocity and the Laws of War, 50 Harv. Int'l L.J. 365, 365 (2009) (noting that "the principle of reciprocity has long been foundational to international law and the law of war specifically").
166. Id. at 366 ("Few would consider practicable a legal regime that required one side to 'fight with one hand tied behind its back' while its enemy exercised free reign."); see also H. Lauterpacht, The Limits of the Operation of the Law of War, 30 Brit. Y.B. Int'l L. 206, 212 (1953) ("[I]t is impossible to visualize the conduct of hostilities in which one side would be bound by rules of warfare without benefiting from them and the other side would benefit from rules of warfare without being bound by them.").
167. Prior to the London Charter, international treaties establishing the rules of war were generally silent on matters of individual criminal responsibility. See Ratner et al, supra note 29, at 83. The four 1949 Geneva Conventions and two Additional Protocols from 1977 all outline various "grave breaches" that constitute war crimes, but do so without providing detailed elements or standards of criminal liability. See id. at 87-89.
168. See infra Part III.D.
169. See Ratner et al, supra note 29, at 101 ("The criminality of acts violating the laws or customs of war in non-international conflicts has been somewhat obscure until relatively recently. Although some international law developed to provide minimal levels of protection, there is little evidence that violations were traditionally regarded as criminal.... [T]he post-World War II prosecutions for war crimes typically involved incidents of a truly international character.").
170. See Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 129 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2. 1995) ("[W]e have no doubt that [the war crimes alleged] entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts."); see also Rome Statute, supra note 24, at art. 8(2)(e) (defining war crimes "in armed conflicts not of an international character").
171. See supra note 109.
172. Genocide Convention, supra note 22, at art. 2 (stating that genocide includes the commission of an act with "intent to destroy, in whole or in part, a national, ethnical, racial or religious group").
173. Although the post-World War II International Military Tribunals prosecuted aggression under the label "crimes against peace," no subsequent tribunal has possessed jurisdiction over the crime. See generally Bush, supra note 51. After the drafters of the Rome Statute of the International Criminal Court failed to reach agreement on whether and how to give the ICC jurisdiction over the crime, they inserted a placeholder into the Statute, providing that the ICC will "exercise jurisdiction over the crime of aggression once a provision is adopted. .. defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime." Rome Statute, supra note 24, at art. 5(2); see also William A. Schabas, An Introduction to the International Criminal Court 26-28 (2001). On June 11, 2010 the ICC's Assembly of States Parties adopted an amendment defining the offense and establishing preconditions for the exercise of ICC jurisdiction over it.
174. See id. at 3 (art. 15(4) to). See International Criminal Court Assembly of States Parties [ICC-ASP], The Crime of Aggression, ICC-ASP/8/RC/Res.6 June 11, 2010). The amendment is currently pending ratification by the States Parties and, by its terms, will not take effect until 2017 at the earliest. See id. at 4 (art. 15(3) tef). Absent a referral from the Security Council, the amendment will allow States Parties to opt out by declaring they do not accept jurisdiction respecting acts of aggression which they have committed. See id. at 3 (art. 15(4) to).
175. See supra notes 40-47 and accompanying text.
176. See generally Laura Silber & Allan Little, Yugoslavia: Death of a Nation (rev. ed. 1997). As detailed above, other tribunals have focused on conflicts in Rwanda, Sierra Leone, and Cambodia, among other places. See supra notes 25,41 and accompanying text.
177. ICC Prosecutor Luis Moreno Ocampo has initiated investigations with respect to alleged ICL offenses committed in the Darfur region of Sudan, Uganda, the Democratic Republic of Congo, the Central African Republic, and Kenya. International Criminal Court, All Cases, http://www.icc-cpi.int/Menus/ICC/ Situations+and+Cases/Cases.
178. Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 97 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995) ("[T]he large-scale nature of civil strife, coupled with the increasing interdependence of States in the world community, has made it more and more difficult for third States to remain aloof: the economic, political and ideological interests of third States have brought about direct or indirect involvement of third States in this category of conflict, thereby requiring that international law take greater account of their legal regime in order to prevent, as much as possible, adverse spill-over effects.").
179. See, e.g., United States v. Lopez, 514 U.S. 549, 600 (1995) (Thomas, J, concurring) (The aggregation principle "has no stopping point.. .. [0]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." (alteration in original) (emphasis in original)).
180. Fletcher, Romantics, supra note 111, at 45.
181. Id. at 44.
182. Id. at 45.
183. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 268 (rev. ed. 1965);
184. see also David Luban, A Theory of Crimes Against Humanity, 29 yale J. Int'l L. 85, 91 (2004).
185. See Prosecutor v. Erdemović, Case No. IT-96-22-T, Sentencing Judgment, ¶ 28 (Int'l Crim. Trib. for the Former Yugoslavia Nov. 29,1996) ("[Crimes against humanity] are inhumane acts that by their extent and gravity go beyond the limits tolerable to the international community, which must perforce demand their punishment. But crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated.");
186. Larry May, Crimes Against Humanity: A Normative Account 80-95 (2005) (advocating an "international harm principle" according to which crimes against humanity and other ICL offenses require a harm to the international community as a whole);
187. Geoffrey Robertson, Crimes Against Humanity ix (2006) (arguing that crimes against humanity "demean[] every member of the human race"); Schabas, supra note 120, at 21 ("The crimes over which the International Criminal Court has jurisdiction are 'international' not so much because international cooperation is needed for their repression, although this also true, but because their heinous nature elevates them to a level where they are of 'concern' to the international community.");
188. Paola Gaeta, The History and Evolution of the Notion of International Crimes, in International Criminal Justice: Law and Practice from the Rome Statute to its Review 175-76 (Roberto Bellelli ed, 2010) (arguing that an "international crime proper" must be "regarded by the international community as a whole as a conduct deserving to be criminally sanctioned");
189. E. Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int'l L. 178, 195 (1946) ("A crime against humanity is an offence against certain general principles of law which, in certain circumstances, become the concern of the international community, namely, if it has repercussions reaching across international frontiers, or if it passes 'in magnitude or savagery any limits of what is tolerable by modern civilizations.'"). David Luban has argued that crimes against humanity are distinct, not merely in that they violate humanness, but in that they attack humanity in a unique way, namely, by violating our character as "political animals." Luban, supra note 129, at 91. Under this account, it is critical that these crimes are perpetrated by states or state-like entities against individuals based on their membership in a population, thus violating two defining characteristics of the political animal: "individuality" and "the fact that to be human is to live in groups with other humans." Id. at 116-17. In addition, the commission of the crimes by states or state-like organizations reveals them to be "not just horrible crimes; they are horrible political crimes, crimes of politics gone cancerous." Id. (emphasis in original). In this respect, Luban's argument recalls Fletcher's, which also emphasizes the importance of state action to ICL offenses. See Fletcher, Romantics, supra note 111 and accompanying text.
190. Rome Statute, supra note 24, at pmbl.
191. Id. at art. 17(l)(d). The question of how exactly to interpret this requirement has itself become the subject of academic debate. See, e.g., Kevin Jon Heller, Situational Gravity Under the Rome Statute, in Future Directions in International Criminal Justice (Carsten Stahn & Larissa van den Herik eds, forthcoming 2010), available at http://papers.ssm.com/sol3/papers.cfm?abstract- id=1270369;
192. Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 fordham Int'l L.J. 1400 (2009) [hereinafter deGuzman, Gravity and the Legitimacy of the ICC].
193. The point is clearest with respect to crimes against humanity which, by definition, involve "widespread or systematic" criminality. Of course, the outer boundaries of this requirement are debatable. See supra note 109. Although the definition of genocide does not explicitly require collective or systematic criminality, the crime's focus on preventing the destruction of entire groups necessarily associates the crime with collective criminality. See, e.g., Van Schaack & Slye, supra note 30, at 479 (noting that a single person "would rarely be capable of destroying an entire group, or even a significant part of a group," and querying whether "such an individual [should] still be found guilty of genocide where his intended outcome was impossible to achieve").
194. Criminal liability for war crimes does not hinge upon the criminal act forming part of a larger or systematic pattern of behavior. See infra note 158-59.
195. For example, the London Charter defined aggression, or "Crimes Against Peace" as the "planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing." London Charter, supra note 50, at art. 6(a). The Assembly of States Parties of the ICC recently adopted a proposed amendment to the Rome Statute that defines the crime of aggression by reference to specified "act[s] of aggression," all of which involve actions of a state taken against another state. See Int'l Criminal Court Assembly of State Parties [ICC-ASP], The Crime of Aggression, ICC-ASP/8/RC/Res.6 (June 11,2010).
196. See, e.g, CASSESE, supra note 108, at 29 (emphasizing "[t]he exceptional character of war (a pathological occurrence in international dealings, leading to utterly inhuman behavior)" as a historical justification for the imposition of individual criminal responsibility for war crimes). Note, moreover, that the Rome Statute expresses a preference for ICC jurisdiction over war crimes committed "as part of a plan or policy or as part of a large-scale commission of such crimes." Rome Statute, supra note 24, at art. 8(1).
197. See, e.g., Id. at Matthew Lippman, The White Rose: Judges and Justices in the Third Reich, 15 Conn. J. Int'l L. 95, 114 (2000) (noting that, in Nazi Germany, "the Fuhrerprinzip, or leadership principle, required judges to adhere to the Fuhrer's policies and programs").
198. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on Rule 11bis Appeal, ¶ 17 (Int'l Crim. Tribunal for Rwanda Aug. 30, 2006) (distinguishing genocide from homicide on the ground that "the protected legal values are different" because the "penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives").
199. See, e.g., deGuzman, Gravity and the Legitimacy of the ICC, supra note 132, at 1407 (observing that "[i]nternational crimes will not always be more serious than domestic crimes").
200. See, e.g., Rome Statute, supra note 24, at art. 7( 1).
201. See, e.g., id. at art. 6.
202. See Drumbl, supra note 26, at 32; Run G. Teitel, Transitional Justice 50 (2000).
203. Arendt, supra note 129, at 268.
204. On this point, Luban acknowledges that a broader humanism may justify any number of human rights obligations beyond the interests protected by crimes against humanity. He discounts the relevance of such efforts, however, by arguing that human rights obligations are largely unenforceable. See generally Luban, supra note 129. Of course, one can level a similar charge against ICL itself, given the highly selective history of its enforcement.
205. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A (III) A, U.N. Doc. A/RES/217(111) (Dec. 8, 1948) [hereinafter UDHR];
206. International Covenant on Civil and Political Rights, Dec. 16,1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
207. See, e.g., UDHR, supra note 145, at art. 3 ("Everyone has the right to life, liberty and security of person."); ICCPR, supra note 145, at arts. 6, 9 (right to life and rights of liberty and security of person).
208. An instructive example of the same logic can be found in the European Court of Human Rights' decision in Case of M.C. v. Bulgaria, which found inadequate Bulgaria's rape law, holding inter alia that "[s]tates have a positive obligation inherent in Articles 3 and 8 of the [Convention for the Protection of Human Rights and Fundamental Freedoms] to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution." App. No. 39272/98, ¶ 153 (2003), available at http://www.echr.coe.int/eng. The Court implied this obligation from a treaty provision asserting a right to be free from torture and inhuman and degrading treatment, see id. ¶ 110, and from another securing a right to privacy, see id.
209. See supra text accompanying note 48.
210. See Ratner et al, supra note 29, at 25 ("[N]ullem crimen does not serve to exculpate all those who committed atrocities under the color of the law or rules in effect at that time. In other words, the promulgation of new rules by a regime violating human rights does not change the international law or criminality of the offenses."). For example, a 2005 decision of Argentina's Supreme Court relied on international law to deny effect to amnesty laws purporting to shield military officers from prosecution for serious human rights violations. Corte Suprema de Justicia de la Natión [CSJN] [National Supreme Court of Justice], 14/6/2005, "Simón, Julio Héctor," Colección Oficiai de Fallos de la Corte Suprema de Justicia de la Nación [Fallos] (2005-328-2056) (Arg.), available at http://www.acnur.org/biblioteca/pdf/3560.pdf.
211. For a summary of this decision and related cases, see generally Lisa J. Laplante, Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes, 49 Va. J. Int' l L. 915 (2009).
212. May, supra note 130, at 63-79.
213. Id. at 68.
214. Id. at 80-95; see supra note 130 and accompanying text.
215. Andrew Altman & Christopher Heath Wellman, A Defense of International Criminal Law, 115 Ethics 35,49 (2004).
216. Rome Statute, supra note 24, at art. 7( 1).
217. Altman & Wellman, supra note 153, at 48-49. More specifically, the authors reject the Rome Statute's requirement of an "attack" on a civilian population, id. at 50, which the treaty further defines as a course of conduct "in furtherance of a State or organizational policy to commit such attack," Rome Statute, supra note 24, at art 7(2)(a).
218. Altman & Wellman, supra note 153, at 49.
219. M. Cherif Bassiouni adopts a similar rationale in developing his theory of crimes against humanity. Bassiouni argues that crimes against humanity require an "international element," which he defines as the existence of a "state action or policy" underlying the offense. M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 247 (1992). According to Bassiouni, "[ijmplicit in the notion of 'state action or policy' as the international element, is the realization that national legal systems are frequently incapable of reaching certain persons who, by virtue of their position, are beyond the reach of the law. Thus, there is a necessity for international criminalization ...." Id. My account is more permissive, however, in that it recognizes that similar enforcement-based concerns may be triggered by crimes that are not themselves the product of state action or policy.
220. For a criminal offense to qualify as a war crime, it must be closely related to an armed conflict. See Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, ¶ 14 (May 26, 2003);
221. Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-T, Judgement, ¶¶ 185-89 (May 21, 1999);
222. Prosecutor v. Kunarac, Case Nos. IT-96-23 & IT 96-23/1-A, Judgement, ¶¶ 82-84 (Int'l Crim. Trib. for the Former Yugoslavia June 12, 2002). There is, however, no requirement that the offense form part of a broader pattern of criminal behavior.
223. Rome Statute, supra note 24, at art. 8(1).
224. Id. at art. 17(l)(a).
225. Although the concept of complementarity is most closely associated with the ICC, related ideas have found expression in other contexts as well. Some have maintained, for example, that states exercising universal domestic jurisdiction over international crimes owe some deference to domestic courts possessing a more traditional basis of jurisdiction. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.2l (2004) (noting, for purposes of recognizing universal civil jurisdiction in U.S. federal courts under the Alien Tort Statute, the European Commission's argument that "before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other forums [sic] such as international claims tribunals");
226. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) 2002 I.C.J. 3, 80 (Feb. 14) (joint separate opinion of Judges Higgins, Koojimans, and Buergenthal) ("A State contemplating bringing criminal charges based on universal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned."). In addition, both the Institut De Droit International and the Princeton Project on Universal Jurisdiction have endorsed frameworks for universal jurisdiction that would give prosecutorial priority to states enjoying a traditional basis of jurisdiction over the crime in question. See Institute of International Law, Resolution, Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes Against Humanity, and War Crimes (Aug. 25, 2005), available at http://www.idi-iil.org/idiE/resolutionsE/2005-kra-03-en.pdf
227. ("Any State having custody over an alleged offender should, before commencing a trial on the basis of universal jurisdiction, ask the State where the crime was committed or the State of nationality of the person concerned whether it is prepared to prosecute that person, unless these States are manifestly unwilling or unable to do so.... Any State having custody over an alleged offender, to the extent that it relies solely on universal jurisdiction, should carefully consider and, as appropriate, grant any extradition request addressed to it by a State having a significant link, such as primarily territoriality or nationality, with the crime, the offender, or the victim, provided such State is clearly able and willing to prosecute the alleged offender."); Princeton University Program in Law and Public Affairs, Princeton Principles on Universal Jurisdiction, in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law 18, 23 (Stephen Macedo ed, 2003) (providing, in Principle 8, a multi-factor test for "Resolution of Competing Jurisdictions");
228. see also Florian Jessberger, Universal Jurisdiction, in The Oxford Companion to International Criminal Justice, supra note 88, at 555, 556 ("From a legal policy perspective the exercise of universal jurisdiction may be warranted because, as regards the prosecution of these heinous crimes against international law, the state of commission often is either unable or unwilling to prosecute the offenders.").
229. For a broader discussion of different concepts of complementarity in international criminal law, see Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (2008).
230. See supra note 137 and accompanying text.
231. I put aside for these purposes the problem of whether German law would need to employ the same labels as ICL, for example by prosecuting genocide as genocide rather than as multiple counts of murder. See infra note 272 and accompanying text. The potential relevance of domestic law principles is of course broader than that particular question.
232. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
233. See Berman, supra note 23, at 1209-11.
234. See id. at 1201-03.
235. See Hague Convention Respecting the Laws and Customs of War on Land, art. 43, Oct. 18,1907, 36 Stat. 2277,1 Bevans 631 (1910).
236. Prosecutor v. Delalic, Case No. IT-96-21-A, Judgement, ¶ 756 (Int'l Crim. Trib. for the Former Yugoslovia Feb. 20, 2001).
237. See supra note 19.
238. See ICTR Statute, supra note 42, at art. 23(1) ("The penalty imposed by the Trial Chamber shall be limited to imprisonment.");
239. U.N. SCOR, 49th Sess, 3453d mtg, at 16, U.N. Doc. S/PV.3453 (Nov. 8, 1994). See generally Madeline H. Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda, 7 duke J. Comp. & INT'l L. 349, 356-57 (1997) (noting Rwanda's objection that "[t]he leaders of the genocide, tried before the International Tribunal, would escape the death penalty while lower level perpetrators, tried in Rwanda national courts, might be executed").
240. See Organic Law No. 08/96 of August 30, 1996 on the Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed Since October 1, 1990, Art. 14 (Rwanda), available at http://www.preventgenocide.org/law/domestic/rwanda.htm .
241. See Republic of Rwanda Decret-Loi No. 21/77, Code Penal art. 26, 1 Codes et Lois du Rwanda 391 (1995), Universitd Nationale du Rwanda Faculte" de Droit (Fr.). In 2007, Rwanda repealed its death penalty, largely so that as to facilitate the transfer of suspects to Rwandan courts. See Organic Law No. 31/2007 of July 25, 2007, art. 3 (Rwanda) (relating to the Abolition of the Death Penalty) ("In all legislative texts in force before the commencement of this Organic Law, the death penalty is substituted by life imprisonment or life imprisonment with special provisions as provided for by this Organic Law.");
242. Aimable Twahira, "Rwanda to Scrap Death Penalty in Hunt for Genocide Suspects," Inter Press Service, Sept. 4, 2006, available at http://www.genocidewatch.org/images/Rwanda-4-Sep-06-Rwanda-to-Scrap-Death- Penalty-in-Hunt-for-Genocide-Suspects.pdf.
243. To take one example, the ICC Elements of Crimes limits genocide prosecutions to cases of criminal conduct where "[t]he conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction." Finalized Draft Text of the Elements of Crimes, Preparatory Commission for the International Criminal Court, arts. 6(a)(4), (b)(4), (c)(5), (d)(5), (e)(7), U.N. Doc. PCNICC/2000/l/Add.2 (2000). The ICTY Appeals Chamber has expressly rejected this limitation on the law of genocide. See Prosecutor v. Krstid, Case No. IT-98-33-A, Judgement, ¶ 224 (Int'l Crim. Trib. for the Former Yugoslavia Apr. 19,2004).
244. Handyside v. United Kingdom (1979-80) 1 EHRR 737, ¶ 48;
245. see also George Letsas, Two Concepts of the Margin of Appreciation, 26 Oxford J. Legal Stud. 705, 724 - 29 (2006). Letsas distinguishes this "structural" concept of the margin of appreciation from a separate "substantive" concept of the doctrine that addresses "the relationship between individual freedoms and collective goals." Id. at 706.
246. See supra notes 24-26,108-10 and accompanying text.
247. See generally Greenawalt, Justice, supra note 27, at 601-05.
248. See Sierra Leone Statute, supra note 25; ECCC Statute, supra note 25. See generally Turner, supra note 26.
249. Mirjan Damasksa comes close to endorsing a pluralistic conception of ICL based on this rationale. See Mirjan Damaška, What Is the Point of International Criminal Justice?, 83 Chi.-Kent L. Rev. 329, 349 (2008) ("Ideally then, international criminal justice would appear in various local garbs. In order to command 'thick acceptance,' it would be adapted to local legal culture, the contours of communal experience, and local moral sensibilities."). He rejects this approach, however, on the grounds that it would "entail fragmentation of international criminal law: the multiplicity of its variations would be difficult to order in ways capable of preserving the system's coherence." Id. DamaSka therefore argues that local variation is better addressed through exercises of prosecutorial discretion and through judicial decisions that "make it their habit always to explain ... the reasons or special needs that induce international criminal law to deviate from whatever local norms or practices are deemed fair and appropriate." Id.
250. See International Military Tribunal (Nuremberg), Judgment and Sentences, 41 Am. J. Int'l L. 172,217 (1947) ("[I]t is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice." (italics in original)).
251. Rome Statute, supra note 24, at art. 22(1) ("A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court."); see also International Covenant on Civil and Political Rights art. 15, Dec. 16, 1966, 6 I.L.M. 368,999 U.N.T.S. 172 [hereinafter ICCPR].
252. See supra Part I.B.
253. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶ 49 (Int'l Crim. Trib. for the Former Yugoslovia Oct. 7, 1997) ("Were ex hypothesi international criminal law really ambiguous on duress or were it even to contain a gap, it would therefore be appropriate and judicious to have recourse - as a last resort - to the national legislation of the accused, rather than to moral considerations or policy-oriented principles." (emphasis in original)).
254. See Rome Statute, supra note 24, at art. 21(lXc); see also supra notes 99-106 and accompanying text.
255. See ICTR Statute, supra note 42, at art. 23(1); ICTY Statute, supra note 41, at art. 24(1).
256. For example, one who murders in violation of domestic law may also be guilty of a war crime, a crime against humanity, or genocide depending on whether, as the case may be, the crime took place in the context of an armed conflict, the perpetrator acted in knowing furtherance of a widespread or systematic attack on a civilian population, or acted with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. See Rome Statute, supra note 24, at arts. 6-8.
257. See John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 201 (1985) (identifying "notice" and "fair warning" as common foci of justifications of "nulla poena sine lege, the vagueness doctrine, and the rule of strict construction").
258. See Beth Van Schaack, Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals, 97 Geo. L.J. 119, 145-146 (2008) [hereinafter Van Schaack, Crimen Sine Lege].
259. See Jeffries, supra note 186, at 201.
260. See supra Part I.
261. For a more extensive discussion of this problem in the context of the ICC, see Greenawalt, Justice, supra note 27, at 657-58.
262. This consideration also supplies one of the rationales underlying the concept of the margin of appreciation in the human rights context. See, e.g., Yuval Shany, Toward a General Margin of Appreciation Doctrine in International Law? 16 EUR. J. INT'L. L. 907, 908-09 (2005) ("The increased power of judicial review exercised by international courts over national decision-makers raises a host of problems, mainly involving legitimacy and capacity concerns.... A general margin of appreciation doctrine responds to some of these concerns through the development of less intrusive and, by implication, more politically acceptable and cost-effective standards of review of national decisions.").
263. See infra Part V.A.4.
264. This concern is reflected in the phrases nullum crimen sine lege (no crime without law) and nulla poena sine lege (no punishment without law). See supra notes 179-80 and accompanying text. There is no corollary principle of "no acquittal without law."
265. See George P. Fletcher, Rethinking Criminal Law 569-70 (1978) [hereinafter Fletcher, Rethinking] (arguing that the prohibition on retroactive punishment should not "preclude the judicial recognition of new claims of excuse and justification").
266. See Florian Jessberger, International v. National Prosecution of International Crimes, in The Oxford Companion to International Criminal Justice, supra note 88, at 208, 214 ("[E]xtreme costs, limited capacity and, most importantly, dependence on the cooperation of states make international prosecutions an undertaking that should (and realistically, must) be reserved for just a few cases.").
267. This or a related concern appears, for example, to underlie Mirjan DamaSka's concern that the "ideal" of developing ICL in "various garbs" that are "adapted to local legal culture" is unrealizable because it would "entail fragmentation of international criminal law: the multiplicity of its variations would be difficult to order in ways capable of preserving the system's coherence." Damaška, supra note 178, at 349; see also Osiel, supra note 62, at 4 n.l4 (2008) (querying in the context of DamaSka's argument whether "it would ... be possible to 'harmonize' national variations in the domestic incorporation of international criminal law on the basis of general principles").
268. See supra Part I.C.; supra notes 105-07 and accompanying text.
269. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶¶ 58-61 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
270. Absent a referral from the United Nations Security Council, and subject to additional procedural requirements, the Court can try cases of crimes committed by, or on the territory of, one of the 108 states that have ratified the treaty. See Rome Statute, supra note 24, at art. 12. A Security Council referral, however, can extend the Court's reach to states like Sudan that have not ratified the treaty. See id. at art. 13(b).
271. The example of the ICTY is only slightly more complicated because that tribunal has focused on crimes committed while Yugoslavia was in the process of dissolving into six separate states, all of which, nevertheless, enjoy a common legal heritage.
272. See supra text accompanying note 25.
273. Rome Statute, supra note 24, at art. 10.
274. See, e.g., Schabas, supra note 120, at 23 ("Those who argue that customary law goes beyond the Statute, for example by prohibiting the use of certain weapons that are not listed in Article 8, can rely on [Article 10]. It will become more and more important in the future, because customary law should evolve and the Statute may not be able to keep pace with it.").
275. Sierra Leone Statute, supra note 25, at art. 19(1) (limiting penalties to life imprisonment); ECCC Statute, supra note 25, at art. 10 (same); Rome Statute, supra note 24, at art. 77 (same); ICTR Statute, supra note 42, at art. 23(1) (same); ICTY Statute, supra note 41, at art. 24(1) (same).
276. See Schabas, supra note 120, at 140 ("The debate about capital punishment threatened to undo the Rome Conference.").
277. See id. at 140-41; Rome Statute, supra note 24, at art. 80 ("Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.").
278. See, e.g., David J. Scheffer, The United States and the International Criminal Court, 93 Am. J. Int'l L. 12 (1999);
279. David Scheffer, Ambassador-at-Large for War Crimes Issues Holds News Conference at National Press Club (July 31, 1998) (transcript available at 1998 WL 431804).
280. Rome Statute, supra note 24, at art. 8(1); see also Bartram S. Brown, The Statute of the ICC: Past, Present, and Future, in the united states and the international Criminal Court 61,69 (Sarah B. Sewall & Carl Kaysen eds, 2000).
281. See Rome Statute, supra note 24, at art. 30(1) ("Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge."). The ICC's early case law, however, reflects a split regarding whether the Rome Statute definition of "intent" should be interpreted to encompass the civil law concept of dolus eventualis, which is roughly analogous to the common law concept of recklessness. See supra note 91.
282. See generally Janet Halley, Rape at Rome: Feminist Interventions in Criminalization of Sex-Related Offenses in Positive International Criminal Law, 30 MlCH. J. Int'l. L. 1 (2008) (surveying feminist influences on the recognition and definition of sex-related crimes at the ICTY, ICTR, and ICC).
283. See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement (Int'l Crim. Trib. For Rwanda Sept. 2, 1998) (genocide and crimes against humanity);
284. Prosecutor v. Kunarac, Kovac, and Vukovid, Case No. IT-96-23-T, Judgement (Int'l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001) (war crimes and crimes against humanity);
285. Prosecutor v. Furundzija, Case No. IT-95-17/1-A, Judgement (Int'l Crim. Trib. for the Former Yugoslavia July 21,2000) (war crimes).
286. See M.C. v. Bulgaria, App. No. 39272/98, VI 101-08 (2003), available at http://www.echr.coe.int/eng (relying in part on ICL definitions of the underlying offense of rape to rule that Bulgaria had failed in its obligation to effectively punish rape in the context of ordinary offenses regulated by Bulgaria's national laws); Baylis, supra note 26, at 37 (arguing, in the context of prosecuting crimes against humanity in the Democratic Republic of Congo, that resort to Rome Statute definitions provided a superior definition of the underlying offense of rape than would have resulted from applying national law).
287. See Greenawalt, Justice, supra note 27, at 657-58.
288. Berman, supra note 23, at 1190-91 (citing United States v. Lopez, 514 U.S. 549, 580-81 (1995) (Kennedy, J, concurring)).
289. See Diane Marie Amann, Impartiality Deficit and International Criminal Judging, in Atrocities and International Accountability: Beyond Transitional Justice 208 (Edel Hughes, William A. Schabas & Ramesh Thakur eds, 2007);
290. Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75,101 (2005); Fletcher & Ohlin, supra note 73, at 541; Robinson, supra note 62.
291. Robinson, supra note 62, at 927.
292. See generally Robinson, supra note 62, at 929 (arguing that the influence of "influence of assumptions of human rights and humanitarian law," on ICL, alongside other possible influences such as the gravity of the crimes and institutional or reputational concerns, "actively works at cross-purposes to fundamental criminal principles").
293. See, e.g., Int'l Criminal Court Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor 7 (Sept. 2003), http://www.amicc.org/docs/OcampoPolicyPaper9-03.pdf (announcing the policy of the ICC Prosecutor's office to "focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes" (emphasis omitted)).
294. See supra note 60 and accompanying text.
295. For a related point, see generally Chimene Keitner, Comment, Crafting the International Criminal Court: Trials and Tribulations in Article 98(2), 6 UCLA J. Int'l L. & Foreign Aff. 215 (2001) (analyzing the trade-off between developing consistent international law and achieving political consensus in the context of the Rome Statute's negotiation).
296. Rome Statute, supra note 24, at art. 121(4); see also Van Schaack, Crimen Sine Lege, supra note 187, at 137 ("The only way treaties can be amended is through the sporadic and sluggish multilateral treaty drafting process. Indeed, states are loath to renegotiate existing treaties, not only because of the transaction costs inherent to such an endeavor, but also because of the confusion wrought in trying to keep track of which states have ratified which version of which treaty."). In June 2010, the ICC's Assembly of States Parties adopted a proposed amendment adding the crime of aggression to the Rome Statute, and in doing so took the view that the 7/8th ratification requirement did not apply to Articles 5, 6, 7, and 8 of the Rome Statute, which identify the offenses over which the ICC has subject matter jurisdiction.
297. David Scheffer, States Parties Approve New Crimes for International Criminal Court, ASIL Insights (June 22, 2010), http://www.asil.org/ insightsl00622.cfm; see supra note 120. At minimum, however, a two-thirds majority of States Parties is required to adopt an amendment prior to ratification, see Rome Statute, supra note 24, at art. 121(3), and amendments to Articles 5, 6, 7, and 8 do not bind non-ratifying states, see id., at art. 121(5).
298. See supra note 214 and accompanying text.
299. See supra notes 88-107.
300. See Rome Statute, supra note 24, at art. 10.
301. See Restatement (Third) of Foreign Relations Law § 402 (1987) (identifying bases of jurisdiction to prescribe);
302. Ian Brownlie, Principles of Public International Law 301-14 (7th ed. 2008) (same).
303. See supra notes 116-17 and accompanying text.
304. See Rep. of the Int'l Law Comm'n, 58th Sess, 1 May-9 June and 3 July-11 August 2006, U.N. Doc. A/61/10, Annex E, [hereinafter International Law Commission, Extraterritorial Jurisdiction];
305. Restatement (Third) of Foreign Relations Law, supra note 225, §§ 402,403.
306. Pursuant to Article 17(1) of the Rome Statute, a case is inadmissible when "[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." Rome Statute, supra note 24, at art. 17(l)(a). The Statute does not specify which bases of jurisdiction are to be privileged under this framework.
307. Rome Statute, supra note 24, at art. 21.
308. This is the approach endorsed by the American Law Institute in its Restatement (Third) of Foreign Relations Law. See Restatement (Third) of Foreign Relations Law, supra note 225, § 403 (jurisdiction to prescribe); id. at § 404 (jurisdiction to adjudicate).
309. See id. at §421.
310. See International Law Commission, Extraterritorial Jurisdiction, supra note 227, % 18 ("[T]he 'territoriality principle' is considered the primary basis for jurisdiction in criminal law matters ...."); Restatement (Third) of Foreign Relations Law, supra note 225, § 403 cmt. f at 247 ("[T]he presence of substantial foreign elements will ordinarily weigh against application of criminal law. In such cases, legislative intent to subject conduct outside the state's territory to its criminal law should be found only on the basis of express statement or clear implication."). 233.
311. See Sierra Leone Statute, supra note 25, at art. 1(1) (establishing jurisdiction over the "serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996").
312. See supra note 78 and accompanying text.
313. Rome Statute, supra note 24, at art. 12(2).
314. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
315. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 75 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
316. See supra Part II.B.
317. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶¶ 22, 37 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
318. Id. ¶ 88. Judge's Li's opinion does not explicitly limit the analysis to soldiers, and instead endorses the apparently broader holding that "that duress can only be a mitigating circumstance and is not a defence to the massacre of innocent persons." Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li, ¶ 12 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997). Neither opinion highlights this apparent point of difference, however, and in the very next sentence Judge Li states that his "view agrees with and is in support of the Joint Separate Opinion of Judges McDonald and Vohrah." Id.
319. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 75 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
320. Id. ¶ 76.
321. Id.
322. See Luis E. Chiesa, Duress, Demanding Heroism, and Proportionality, 41 Vand. J. Transnat'lL. 741,751-54 (2008).
323. Id. at 770.
324. See, e.g., Fletcher, Rethinking, supra note 194, at 833 ("[I]f the cost in human lives is sufficiently high, we could properly expect someone to resist threats to his own life.");
325. Joshua Dressier, Exegesis of the Law of Duress: Justifying the Excuse and Searching forks Proper Limits, 62 S. Cal. L. Rev. 1331, 1373-74 (1989) ("Society ... has a right to expect a person to demonstrate a higher level of moral strength when ordered to kill a hundred innocent children than when commanded to kill one.").
326. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 75 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997); see also id. ¶ 88 (appealing to the court's "mandated obligation under the Statute to ensure that international humanitarian law, which is concerned with the protection of humankind, is not in any way undermined").
327. Lynch v. DPP for N. Ir, [1975] A.C. 653, 687-88, quoted in Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 73 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7,1997).
328. Lynch, [1975] A.C. at 687-88, quoted in Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 75 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
329. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Li, ¶ 8 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
330. See supra Part II.B.
331. immanuel Kant, Introduction to the Elements of Justice, in THE METAPHYSICAL Elements of Justice 33, 41 (John Ladd trans, 1965);
332. see also Claire O. Finkelstein, Duress: A Philosophical Account of the Defense in Law, 37 Ariz. L. Rev. 251, 263 (1995) (quoting the same and observing that "Kant[] defended the duress defense on deterrence grounds").
333. See Chiesa, supra note 244, at 759. As Chiesa notes, however, diminished capacity to reason might not provide a fully satisfactory account. Id.
334. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 84 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
335. Prosecutor v. Erdemović, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, \ 85 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7, 1997).
336. Id. U86.
337. Id. 1181.
338. On remand, the Trial Chamber sentenced Erdemović to five years' incarceration. Prosecutor v. Erdemović, Case No. IT-96-22-T, Sentencing Judgment, U 23 (Int'l Crim. Trib. for the Former Yugoslavia Mar. 5, 1998).
339. Chiesa, supra note 244, at 746-48.
340. Prosecutor v. Erdemović, Case No. IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, ¶ 42 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 7,1997).
341. Rome Statute, supra note 24, at art. 31 (1 )(d).
342. Id.
343. See Chiesa, supra note 244, at 749-50.
344. Id. at 753.
345. See id. at 756-57.
346. See id. at 771-72.
347. Krivicni Zakon Socijalisticke Federativne Republike Jugoslavije [Criminal Code of The Socialist Federal Republic of Yugoslavia], art. 10, Sluzbeni List Socialisticke Federativne Republike Jugoslavije (SFRJ) [Official Gazette of the Socialist Federal Republic of Yugoslavia (SFRY)], No. 44/1977, 1977 (reflecting the law prevailing prior to the breakup of the former Yugoslavia). Bosnia subsequently enacted a criminal code that mirrors the approach to duress reflected in earlier Yugoslav law.
348. See Krivicni Zakon Bosne i Hercegovine [KZBiH] [Criminal Code of Bosnia and Herzegovina], art. 25, Sluẑbeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia and Herzegovina], No. 3/03, 32/03, 37/03, 54/04,61/04,30/05, 2006.
349. Krivicni Zakon Socijalisticke Federativne Republike Jugoslavije [Criminal Code of The Socialist Federal Republic of Yugoslavia], art. 10, Sluzbeni List Socialisticke Federativne Republike Jugoslavije (SFRJ) [Official Gazette of the Socialist Federal Republic of Yugoslavia (SFRY)], No. 44/1977, 1977 (reflecting the law prevailing prior to the breakup of the former Yugoslavia). Bosnia subsequently enacted a criminal code that mirrors the approach to duress reflected in earlier Yugoslav law.
350. See Krivicni Zakon Bosne i Hercegovine [KZBiH] [Criminal Code of Bosnia and Herzegovina], art. 25, Sluzbeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia and Herzegovina], No. 3/03, 32/03, 37/03, 54/04,61/04,30/05, 2006.
351. See supra note 182 and accompanying text.
352. See Rome Statute, supra note 24, at art. 31 (d).
353. In this respect, my category of universally binding law overlaps with the idea that the core ICL offenses are jus cogens norms from which no state may derogate. See M. Cherif Bassiouni, International Criminal Justice in Historical Perspective: The Tension Between States' Interests and the Pursuit of International Justice, in The Oxford Companion to International Criminal Justice, supra note 88, at 131, 131. For my purposes, however, the critical question is to determine not whether these crimes are jus cogens in some broad sense, but precisely how much of the applicable law is in fact universal.
354. In its broad outlines, this approach is consistent with the ICTR Appeals Chamber's refusal to refer the prosecution of a suspect to Norway on the ground that Norway, lacking a genocide statute, would have pursued prosecution under its murder statute. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on Rule 11bis Appeal (Aug. 30, 2006). Although "appreciating] fully that Norway's proposed prosecution of Mr. Bagaragaza, even under the general provisions of its criminal code, intends to take due account of and treat with due gravity the alleged genocidal nature of the acts underlying his present indictment," the Appeals Chamber noted that "in the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the 'ordinary crime' of homicide." Id. ¶ 17. It therefore rejected the referral both on the ground that the ICTR's statute would have allowed reprosecution of the suspect for genocide irrespective of the domestic prosecution outcome, and on the ground that "the protected legal values are different. The penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives." Id. The strictness of the ICTR's approach, however, risks turning the issue into one of pure semantics, especially considering the Court's acceptance that Norwegian proceedings would have "treat[ed] with due gravity the alleged genocidal nature of the acts underlying ... [the] indictment." Id. Note, however, that the text of the Rome Statute suggests a more flexible approach for the International Criminal Court. It provides, with limited exceptions, that "[n]o person who has been tried by another court for conduct also proscribed [by the Rome Statute] shall be tried by the Court with respect to the same conduct." Rome Statute, supra note 24, at art. 20(3). This phrasing suggests that another court might prosecute a suspect for the "same conduct" under a different legal label.
355. Notably, international instruments have consistently given special attention to the doctrines of command responsibility and acting under orders, even where they have otherwise given short shrift to the general part of criminal law. See London Charter, supra note 50, at art. 8 (superior orders);
356. Allied Control Council Law No. 10, art. II(4)(b), Dec. 20, 1945 (superior orders); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protections of Victims of International Armed Conflicts (Protocol I), art. 87, Dec. 12, 1977 (duty of commanders); ICTY Statute, supra note 41, at art. 7(3) (command responsibility); id. at art. 7(4) (superior orders);
357. ICTR Statute, supra note 42, at art. 6(3) (command responsibility); id. at art. 6(4) (superior orders).
358. See supra notes 202-03 and accompanying text.
359. See supra Part IV.C.
360. Fletcher, Rethinking, supra note 194, § 6.5.2.
361. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, VI 187-249 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).
362. See supra notes 62, 90.
363. See, e.g., DamaSka, supra note 178, at 352 ("[JCE's] animating idea - that of reaching criminal masterminds - is sound. It responds to the fact that most international crimes are committed in an organization context, so that looking for culprits is behind hands-on perpetrators makes eminent sense."). Damaska nevertheless laments that "[i]t is the elaboration of that idea that causes concern. Under the presently prevailing understanding, the scope of membership in the enterprise, as well as its temporal and spatial range, are uncertain and liable to arbitrary extension." Id.
364. See supra notes 62, 89.
365. In this respect, my approach contrasts with recent work that has focused on establishing a coherent, uniform framework of ICL sentencing. See, e.g., Jens David Ohlin, Towards a Unique Theory of International Criminal Sentencing, in international Criminal Procedure: Towards a Coherent Body of Law 373 (Göran Sluiter & Sergey Vasiliev eds, 2009);
366. William Schabas, Sentencing by International Tribunals: A Human Rights Approach, 462 Duke J. Int'l L. 461 (1996);
367. Robert D. Sloane, The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law, 43 Stan. J. Int'lL. 39 (2007).
368. For example, while domestic law may supply general sentencing ranges, ICL must still assert the relative gravity of ICL offenses. A state may not, for instance, rank rape behind shoplifting in its sentencing scheme. Similarly, ICL should generally not allow states to adopt more lenient standards of culpability for ICL offenses than for domestic offenses.
369. See ICTR Rules of Procedure and Evidence, Rule 11 bis (as amended Mar. 14, 2008) (providing for the referral of indictments to other courts);
370. ICTY Rules of Procedure and Evidence, IT/32/Rev. 44, Rule 11 bis (as amended Dec. 10,2009) (same).
371. See supra note 272.
372. See Krivicni Zakon Bosne i Hercegovine [KZBiH] [Criminal Code of Bosnia and Herzegovina], arts. 173-84, Sluzbeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia and Herzegovina], No. 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 2006.
373. See generally William W. Burke-White, The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina, 46 colum. J. Transnat'l L. 279 (2008).
374. See Krivicni Zakon Bosne i Hercegovine [KZBiH] [Criminal Code of Bosnia and Herzegovina], art. 25, Sluzbeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia and Herzegovina], No. 3/03,32/03, 37/03, 54/04, 61/04,30/05, 2006.
375. See supra note 81 and accompanying text.
376. Rome Statute, supra note 24, at art. 13(b).
377. Id. at art. 20.
378. See supra note 24 and accompanying text.
379. See supra notes 230-35 and accompanying text.
380. See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) 2002 I.C.J. 3. (Feb. 14) (joint separate opinion of Judges Higgins, Kooijmans and Buergenthal) (surveying national laws). The view that universal jurisdiction should respect a hierarchy of jurisdictional priority has also gained acceptance among influential scholars. See supra note 161.
381. See Ignacio de la Rasilla del Moral, The Swan Song of Universal Jurisdiction in Spain, 9 Int'l Crim. L. Rev. 777, 803-04 (2009);
382. Steven R. Ratner, Belgium's War Crimes Statute: A Postmortem, 97 Am. J. Int'l L. 888, 891-92 (2003).
383. Rome Statute, supra note 24, at art. 21 (1 Xc) (emphasis added); see supra notes 100-107 and accompanying text.
384. See supra notes 92-95 and accompanying text.
385. ECCC Statute, supra note 25, at arts. 4-6.
386. Id. at art. 3.