International Criminal Law
6
No ICL convention embodies all 10 of these characteristics. Bassiouni discovered
that crimes with a significant ideological or political component, such as aggression,
contain the least number of these characteristics in contrast to those offences devoid
of political considerations, such as drug offences. He concluded that, due to the
decidedly penal nature of these treaties or their provisions, the existence of any one
of the 10 aforementioned characteristics in a convention makes it part of ICL.
20
When examining the general effect of treaties and their passing into the realm of
customary law, one automatically looks at the status of ratifications. This does not
necessarily paint a true picture. Treaties that encompass a wide variety of topics
and, at the same time, expressly exclude reservations, or where certain reservations
would be deemed to conflict with the object and purpose of a treaty, will, in most
cases, attract few parties, not because other States fundamentally disagree with the
entire convention, but simply particular aspects of it. A good example is the 1949
Convention for the Suppression of the Traffic in Persons and of the Exploitation of
the Prostitution of Others.
21
This instrument, which penalises the procurement and
enticement to prostitution as well as the maintenance of brothels, has received a
marginal number of ratifications, simply because a large number of States possess
legislation legalising voluntary prostitution. From a number of sources, such as the
travaux preparatoires
of the Convention, from the global uniformity ascertained in
national legislations, as well as from official pronouncements in international fora
and other relevant treaties, it is beyond doubt that the enticement to and maintenance
of all forms of involuntary prostitution constitute international offences under
customary law. Thus, even though the Convention is not widely ratified, one of the
acts it criminalises is clearly an offence under customary law.
Where international custom criminalises certain conduct, the incumbent court must
also satisfy itself that the particular offence is ‘defined with sufficient clarity under
customary international law for its general nature, its criminal character and its
approximate gravity to have been sufficiently foreseeable and accessible’.
22
In the
Vasiljevic
judgment, the Prosecution charged the accused,
inter alia,
with the offence of
Violence to life and person’. The Trial Chamber was faced with the decision whether
the definition of the offence was of sufficient clarity in order to satisfy the requirements
of the principle
nullum crimen sine lege
. Despite the existence of the offence in the ICTY
Statute, the Trial Chamber very boldly stated that in the absence of any clear indication
in the practice of States as to what the definition of the offence of ‘Violence to life and
person’ may be under customary law, it was not satisfied that such an offence giving
rise to individual criminal responsibility exists under that body of law.
23
Every offence prescribed in treaties or custom must ultimately be implemented
into national law through an act of legislation. This process is followed not only
where the offence is not precisely defined in the treaty, but also where it is set out in
detail in its constitutive instrument. The national legislator might wish further to
elaborate the substantive or procedural elements of the offence, and/or adapt it to
domestic exigencies, but should be guided in this respect by the framework
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