Chapter 1: Theory of International Criminal Law
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extermination of an identified group, is not the sole determinant for elevating such
behaviour to the status of an international offence, although this may serve as a
good incentive to do so. Rather, as Dinstein correctly points out, ‘the practice of
States is the conclusive determinant in the creation of international law (including
international criminal law), and not the desirability of stamping out obnoxious
patterns of human behaviour’.
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Simply put, the establishment of international
offences is the direct result of interstate consensus, all other considerations bearing
a distinct subordinate character.
The legal basis for considering an offence to be of international import is where
existing treaties or custom consider the act as being an international crime.
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Since
every international offence is now codified in multilateral agreements, we shall
continue our analysis on the basis of treaty law. Although international treaties define
or prescribe offences by employing inconsistent terminology, it is possible to discern
two broad categories where they purport to so criminalise specific conduct. The first
category comprises those treaties, such as the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide,
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which contain a categorical provision that
the forbidden act constitutes a crime under international law (usually termed ‘universal’
crimes). A second category of treaties may or may not describe the forbidden conduct
as a crime, but clearly imposes a duty on contracting parties to prosecute or extradite
the alleged offender, or simply render the said conduct an offence under their national
law. The different variants of this latter category have attracted wide application in
the international criminalisation process and have been the major vehicle for the anti-
terrorist treaties. The fact that a treaty defines certain conduct simply as an offence, or
imposes a duty on States to take action at the domestic criminal level, without, however,
describing the conduct as an international crime, in no way detracts from the
international nature of the offence prescribed by the treaty. Treaties of this nature usually
point out that they are not applicable to acts perpetrated solely within a single country—
although this may be subject to change in the post-11 September 2001 era.
Cherif Bassiouni’s analysis of 22 categories of international crimes revealed that
the conventions in which they were contained demonstrated the following 10 penal
characteristics:
(1) Explicit recognition of proscribed conduct as constituting an international crime,
or a crime under international law, or as a crime; (2) implicit recognition of the penal
nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the
like; (3) criminalisation of the proscribed conduct; (4) duty or right to prosecute; (5)
duty or right to punish the proscribed conduct; (6) duty or right to extradite; (7) duty
or right to cooperate in prosecution, punishment (including judicial assistance in penal
proceedings); (8) establishment of a criminal jurisdictional basis (or theory of criminal
jurisdiction or priority in criminal jurisdiction); (9) reference to the establishment of
an international criminal court or international tribunal with penal characteristics (or
prerogatives); and (10) elimination of the defence of superior orders.
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16
Y Dinstein, ‘International Criminal Law’, 20
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