Categories of International Crime (HSC SSCE Legal Studies): Revision Notes

Categories of International Crime

International crime represents a significant shift from traditional domestic criminal law. Understanding how crimes are categorized at the international level is essential for grasping how the global community responds to the most serious offences.

Understanding international crime

International crime refers to any crime with international origin or consequences, or a crime recognised as punishable by the international community. This is a broad term that covers various types of offences.

Historically, criminal law operated within national borders, reflecting each state's cultural and social values. However, globalisation, increased international travel, and technological advances have created new opportunities for crimes to cross borders. This evolution has led to greater international cooperation in combating certain serious offences.

State sovereignty and international crime

State sovereignty means the authority of an independent state to govern itself, including the power to make and apply laws, collect taxes, and form treaties. For most countries, maintaining control over criminal law within their borders is a critical aspect of sovereignty.

However, the international community has increasingly recognised that certain actions are so extreme and universally condemned that they constitute crimes against the entire international community. This recognition represents a fundamental challenge to traditional notions of state sovereignty.

Two main categories

International crimes are broadly divided into two distinct categories:

1. Crimes against the international community
2. Transnational crimes

Distinguishing international crimes from domestic crimes with international elements

It is important to distinguish true international crimes from ordinary domestic crimes that happen to involve foreign elements.

Crimes against the international community

Crimes against the international community are the most serious offences of concern to the international community as a whole. They are recognised as punishable by the international community and represent an entirely different class of crimes compared to domestic or transnational crimes.

Key characteristics

• They are universally condemned by the international community
• They include some of the most extreme crimes possible
• They may be punishable internationally, not just domestically
• Normal laws of criminal jurisdiction may not apply

Types of crimes against the international community

While there is no fully agreed list, these crimes almost always include:

• Genocide
• War crimes
• Crimes against humanity
• Piracy at sea
• Hijacking of aircraft
• Slave trading

Universal jurisdiction

Universal jurisdiction is where a state claims a rare right to prosecute a person for actions committed in another state, based on the common international belief that the alleged crime is so serious that normal laws of criminal jurisdiction do not apply.

Countries such as Belgium, Spain, and the United Kingdom are more likely to assert universal jurisdiction claims. These cases are typically high-profile and politically controversial, as they may involve:

• Crimes committed during brutal wars
• Highly politically motivated offences
• Actions ordered or committed by states themselves
• Situations where perpetrators remain in positions of power or have fled to other jurisdictions

The International Criminal Court (ICC)

The International Criminal Court (ICC) is an independent international court established by the Rome Statute in July 2002 to prosecute and try international crimes of the most serious nature.

Establishment and structure

• Established in The Hague, Netherlands in $2002$
• Created following the signing of the Rome Statute (Rome Statute of the International Criminal Court) at a UN conference in Rome in $1998$
• Came into force in July $2002$ when $60$ states ratified it
• As of $2010$, over $110$ state parties had joined
• Consists of $18$ judges from different signatory countries
• Operates in pre-trial, trial, and appeals divisions
• Independent from the United Nations and nation states

Jurisdiction of the ICC

The Rome Statute gives the ICC jurisdiction over three broad categories of international crime:

1. Genocide
2. Crimes against humanity
3. War crimes

The ICC also has jurisdiction to prosecute crimes of aggression, although member states have not yet agreed on its definition.

How the ICC operates

The ICC functions as a court of last resort. It is intended to complement rather than replace existing national criminal justice systems. The ICC can only prosecute when state courts cannot or are unwilling to do so.

The ICC can exercise jurisdiction where:

• The accused is a national of a member state of the treaty, or
• The alleged crime occurred in the territory of a member state, or
• The situation is referred to the ICC by the UN Security Council

Sentencing powers:

• Imprisonment up to life imprisonment (but not the death penalty)
• Sentences served in a state prison designated by the court
• Fines or forfeiture of assets

Genocide

Genocide refers to acts which have the intention of destroying all or part of a national, ethnic, racial or religious group.

Definition under the Rome Statute

Article 6 of the Rome Statute gives the ICC criminal jurisdiction over acts of genocide that occurred since July $2002$. The Rome Statute defines genocide as including:

• Killing members of the group
• Causing serious bodily or mental harm to members of the group
• Deliberately inflicting conditions of life calculated to bring about the group's physical destruction
• Imposing measures to prevent births within the group
• Forcibly transferring children of the group to another group

Historical context

Genocide has long been condemned internationally. Acts of genocide were criminalised in one of the first UN treaties: the Convention on the Prevention and Punishment of the Crime of Genocide, first signed in $1948$.

Challenges in prosecution

Historical examples

Prosecution mechanisms

Prior to the ICC's establishment in $2002$, genocide cases were dealt with by specific ad hoc tribunals set up to prosecute particular incidents, such as:

• International Criminal Tribunal for the Former Yugoslavia (ICTY)
• International Criminal Tribunal for Rwanda (ICTR)

Since its creation, the ICC has not yet succeeded in convicting any person of genocide.

Crimes against humanity

Crimes against humanity are acts of a sanctioned widespread or systematic attack against any civilian population.

Definition under the Rome Statute

Article 7 of the Rome Statute provides a broad definition. For an act to constitute a crime against humanity, it must be:

• Committed as part of a widespread or systematic attack
• Directed against any civilian population
• Committed with knowledge of the attack

Acts included under Article 7:

• Murder
• Extermination
• Enslavement
• Deportation or forcible transfer of population
• Imprisonment or severe deprivation of physical liberty
• Torture
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or other forms of sexual violence
• Persecution against any identifiable group on political, racial, national, ethnic, cultural, religious, or gender grounds
• Enforced disappearance of persons
• The crime of apartheid
• Other inhumane acts intentionally causing great suffering or serious injury

Key differences from genocide

Historical development

Crimes against humanity were initially prosecuted at the Nuremberg trials ($1945$-$1946$). These military tribunals, held by the victorious allied powers in Nuremberg, Germany after World War II, prosecuted prominent Nazi leaders for crimes against the international community.

Initially, genocide was considered a type of crime against humanity. The Nuremberg trials charged leaders with crimes against humanity and war crimes. Genocide was only later separated and individually defined by the $1948$ Convention on the Prevention and Punishment of the Crime of Genocide.

Context of armed conflict

Formerly, crimes against humanity were considered to have been committed within the context of war. However, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) clarified that crimes against humanity do not have to be committed within the context of armed conflict. The current ICC definition contains no restriction to a war context.

Practical considerations

Crimes against humanity may be easier to prosecute than genocide because of:

• The broader definition
• Lower evidentiary burden (no need to prove specific intent to destroy a group)
• More flexibility in the types of acts covered

However, the term "genocide" holds enormous political weight, creating symbolic differences even though both categories represent extremely serious crimes.

War crimes

War crimes are actions carried out during a time of war that violate accepted international rules of war.

Legal framework: Geneva Conventions

The Geneva Conventions are four treaties and three additional protocols that set standards in international law for the humane treatment of victims of war. These conventions date back as far as $1864$ and establish standards for humanitarian treatment of:

• Civilians
• The sick and wounded
• Prisoners of war
• Medical or religious personnel

Definition under the Rome Statute

Article 8 of the Rome Statute provides an extensive list of activities that can constitute war crimes. The Rome Statute includes:

• Any "grave breaches" of the Geneva Conventions
• Serious violations of the laws of international armed conflict

Key requirements:

• Acts must have taken place during an armed conflict (either international or domestic)
• The ICC has jurisdiction particularly where acts are part of a plan or policy, or part of a large-scale commission of war crimes

Principle of distinction

It is universally understood that during armed conflict, there is a need to protect innocent civilians and their communities from violence not justified by military or civilian necessity.

Examples of war crimes under the Rome Statute:

• Torture or inhuman treatment, including biological experiments
• Wilful killing or wilfully causing great suffering or serious injury
• Extensive and militarily unjustified destruction or appropriation of property
• Intentionally directing attacks at civilian populations or objects
• Intentionally directing attacks at humanitarian personnel or equipment

Notable case: Omar al-Bashir

Other examples

Transnational crimes

Transnational crimes are crimes that occur across international borders, either in origin or effect. Unlike crimes against the international community, transnational crimes are similar to domestic crimes but involve movement across international borders as an element of the criminal act.

Key characteristics

• May originate in one country but be completed in another
• May be committed in one country but the result or injury occurs in another
• Similar to domestic crimes (fraud, hacking, drug trafficking) but with a cross-border element
• Usually prosecuted under domestic jurisdiction of one or another country

Types of transnational crimes

Main categories include:

• Human trafficking and people smuggling: The illegal movement of people across borders by force, coercion, or deceptive means
• International fraud and white-collar crime: Tax evasion, money laundering, and financial crimes
• Transnational internet crimes: Data theft, internet fraud, copyright infringements, spam networks
• International terrorism: Including cyber-terrorism such as disruption of infrastructure, electrical systems, or computer networks
• Child exploitation: Creation and trafficking of child pornography
• Drug trafficking: Transnational trade in illegal substances using international air, shipping, and postal networks

Complexity of transnational crimes

It is impossible to itemise all forms of transnational crime because:

• Multiple different crimes may be involved
• Various parties across different jurisdictions may participate
• Different methods may be employed
• Crimes may cross many borders (e.g., terrorism may be planned in one country, training in another, funds sourced elsewhere, and the act carried out in the target country)
• Organised crime rings can have operations across many countries

Causes of transnational crimes

Common motivations include:

• Socioeconomic differences between countries (e.g., human trafficking or internet fraud originating in less advantaged countries)
• Desire for prohibited goods or services where suppliers are in one country and consumers in another
• Political or ideological differences (e.g., international terrorism or hacking for political reasons)
• Hope that the transnational element will prevent detection (e.g., international money laundering or tax evasion)
• Opportunistic desire for power or financial gain

Challenges in prosecution

The nature of transnational crime makes prosecution very difficult. A person in Nigeria sending fraudulent emails to Australian addresses is difficult for Australian authorities to track or prosecute. Child pornography rings operating across many countries can maintain anonymity. Authorities struggle to break through the anonymity of international criminal networks.

Enforcement approach

Due to difficulties in trans-border detection and enforcement, many transnational crimes are now underpinned by international cooperation agreements between affected countries. These typically involve:

• A pair or group of countries affected by the trans-border crime
• Coordinated law enforcement efforts
• Information sharing mechanisms
• Mutual legal assistance arrangements

For many transnational crimes, prosecution occurs under the domestic law of the target country, as the elements of the crime are often not complete until the border has been crossed.

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