Definition of an International crime

Dr. Azab Alaziz Alhashemi

There is no standard conventional definition of International Crime among jurists and it does not have a provision in international law that defines international crime in general, that does not prevent the scholars of public international law to contribute in the definition of international crime doctrinal definitions, and some that were said by some scholars of public international law, whether in the West or the Arab jurisprudence definition of international crime listed in the following two sections:

The contributions of the Western jurisprudence

 The Jurist (Pella) defines International Crime as the act or the abstention which is punishable on behalf of the international community. Thus, this definition takes a formal direction in the definition of international crime, as it requires the ability to be what an international crime is, that this act has already been criminalized by the international community, and to apply the penalty and execution in the name of the international community, also notes that the jurist (Pella) see the obligation of taking with the introduction of the principle of dual criminal responsibility of the individual and the state for international Crime.

The Jurist (Glacier), however, defined International Crime as an act that commits a breach of the rules of international law to the detriment of the interests protected by the law with its recognition legally as a crime and its perpetrator as a criminal that should be punished.

It is clear from this definition that it is required for an act to be an international crime, it is required to be disturbing to international law and detrimental to its interests, as well as taking the principle of legality for who said “ no crime and no penalty except by text “, however, it was not required in this legitimacy to be written or contained in a conventional text and it was satisfied with what was done by international custom, and (Glaser) took the principle of criminal liability of a natural person but not the moral persons.

(Lombois) sees the International Crime as an aggression representing an essential interest of the international community which enjoys the protection of the international legal order by the rules of international criminal law, or is the actions that are contrary to the rules of international law for violating the interests that the international community has decided to protect it with the rules of this law.

It is also defined by (Plawski) as it is representing an illegal act for individuals, punishable by international law for harming human relations in the international community.

The Contributions of the Arab Jurisprudence

The contributions and efforts to determine the thorny issue of the definition of international crime were not confined to Western scholars of law only, but also there have been efforts by Arab jurists to define international crime and we will discuss some of these definitions:

Dr. Mahmoud Najib Hosni defined international crime as: (an illegal act issued in international law from considering a person with the will of the law and connected in a particular way with the relationship between two or more States, and it has a particular signed punishment).

Dr. Hassanein also defines international crime as: (an involuntary wrong conduct issued by an individual in the name of a state or by its encouragement or satisfaction about it, and it is tainted with prejudice to the interests of an international and legally protected).

Defined by Dr. Abdul Wahid Alfar as: (is nothing but an act or abstention, which is a grave breach of the provisions and principles of international law and prejudice to fundamental and human interests of the international community and members of the human race, which requires international responsibility as well as the need to sign the criminal punishment for the perpetrator of that offense).

Dr. Hussein Omar defines it as: (a criminal incident punishable by international criminal law through an international criminal court for damaging the international peace and security of mankind).

 Dr. Mohiuddin Awad defines international crime as: (each violation of international law whether prohibited by national law or approved by it, taking place by doing an act or not by an individual holding his freedom of choice (morally responsible) causing damage to individuals or the international community based on the request of the state or under its encouragement or satisfaction and the criminal penalty on it is possible by the provisions of that law).

After reviewing all the previous definitions, we can see that the definition of D. Mohammed Mohiuddin Awad is characterized by comprehensiveness and is distant from mystery, it is considered that every act issued by a reasonable person free of his choice, including a violation of one of the rules of international law, becomes an international crime whether the act is considered guilty in internal national law or not, it is thus taking the opinion that the rule of international law is high over domestic law.

He also considers the act as an international crime when there is damage, whether such damage is the result of an act or abstention alike, and is thus equalizing between positive and negative crime and covered together, and the act is considered to be an international crime whether the victim is the international community as a whole or one of the countries or ethnic groups or religious groups or individuals as long as the act may harm them.

Nature of international crime

whatever it is, International crime is represented in the aggression against an interest protected by public international law, because of the resulting threat to international public order, or the damage to international peace and security, and therefore International Crime is accompanied by a universal jurisdiction in punishment, which is represented by the right of every state to arrest the perpetrator of an international crime to punish him without regard to the nationality of the perpetrator of the crime or where it was committed, and his trial before national courts, and the base in this that international crimes are subject to the principle of universal jurisdiction and universality of the right of punishment.

We can stop the nature of international crime through the magnitude of risk and criminal responsibility in the two following sections:

In terms of the magnitude of risk

It is well known that international crime has a high degree of risk, because the international community, criminalizes only the most grave of the acts that touch important international interests or the humanitarian and cultural values that do not vary from one person to another . As Spiro Paulus confirmed the idea of international crime is only applied to acts of private huge magnitude that would disrupt security and public order in the international community. 

Therefore, the gravity of international crime is due in fact to the gravity of the interests that affect it, we find that international jurisprudence in its definition of the concept of international crime confirms and refers to the gravity element as one of the Landmarks of international crime from other crimes. The international community has tried to codify international crimes, and especially war crimes, because of what was left by those wars from the brutality of the committed crimes, so that the perpetrators of such crimes do not escape punishment.

So we find these attempts that have emerged after the post-World War II in the Nuremberg and Tokyo trials, where those two Tribunals highlighted the international character of the crime through the severity of the crime and its threat to people and money and the violation of the laws and customs of war, which must be committed to and adhered to during the war, despite what coincided with this stage of obstacles and difficulties which obstructed international crimes proceedings.  

We find also that the United Nations has made strenuous efforts till the adoption of the Rome Statute of 1998, which included the legalization of four international crimes, is the subject of attention of the international community which classifies such crimes as being of great magnitude and seriousness for what it stands for, from violations directed against the Human peace and security.

In terms of criminal responsibility directed from it

There is a disagreement in the international jurisprudence on the identification of the one in charge of international crime as previously mentioned when defining international crime.

The views of jurists about this were divided into three doctrines:

The first doctrine: is that the state is the only one responsible because it is the only person who commits the crime of international law and without it, the individual (any normal person) cannot commit an international crime, and it is inconceivable that a natural person is subject to two different laws at the same time, domestic law and international law.

The second doctrine: takes the double responsibility of the individual and the state together, the holders of this trend see that crimes and misdemeanors committed by states give rise to two types of responsibility, individual responsibility which is natural persons, and collective or social responsibility of moral persons (countries), but it is noted that supporters of the two previous doctrines are few nowadays.

The third doctrine: supporters of this view see that a natural person is the only perpetrator of the international crime and therefore is the only responsible for the crime in a direct way.

The latter doctrine is the one that prevailed in jurisprudence and was adopted by the UN and the judiciary, and this is what we support in our research. If moral people can will, according to the law, nothing is preventing them from committing crimes. In this case, there is a kind of mystery, because the term will be used in a different meaning from its psychological meaning, or its common meaning. From the psychological side, talking about “the will” of the moral people does not make sense, because this will can only function by the members representing the moral person, and it will not be anything but the will of these members.

However, some of the legislations predict sanctions on moral persons like abolition/exemption or the fine, but the abolition is not a punishment in the technical sense, but it is merely a legal interception to the illegitimate position of others’ purpose that members are engaged in and revoke their special agreement on the composition of the group.

In terms of the fine, however, it is known that all damage must be repaired, so the share capital of the moral person is the one who takes the responsibility for the burden of the damage resulting from its representatives, but this method is useful, since through which insolvency of the person in charge and his inability to pay can be avoided, but it cannot be inferred from this that the moral person can criminally be persecuted.

Thus, the State is indirectly responsible for its citizens and it holds responsibility for the compensation of damage to the victims, as it always can pay, and those responsible for the damage are its nationals.

The address of international criminal law to the individual looks inevitable and with no escape, considering that international crime and what it raises from various issues are the subject of this law and that the individual is the actual perpetrator of the crime.

Whereas states or international organizations, cannot commit it by themselves, as moral persons. (Glaser) sees that the perpetrator of an international crime can only be the individual, meaning the natural person who commits crimes for his account, or on behalf of the State, or for its account, so he rejects the moral responsibility of the persons criminally.

(Nichola Leates) sees that only the human person is the one who can commit crimes and he alone can be punished by criminal penalties therefore any opinion other than this is an arbitrary opinion of no point because the Criminal Code does not care about analyses and perceptions but it does care about facts.

The various international documents, multiple international and practices of international criminal justice came to confirm what is said by the proponents of this doctrine, that a natural person is the actual doer and is the first directly responsible for international crime.

Therefore, the Treaty of Versailles did not provide for the trial of Germany criminally as a state but provided for the trial of “Guillaume II,” the Emperor of Germany, and other war criminals, which was confirmed by Article 277 and beyond of the Treaty of Versailles of 1919. 

What is noted from the provisions of this Treaty is that it recognized the individual responsibility of a natural person, and it is considered to its favor that it recognized the criminal responsibility of the State.

The Nuremberg tribunal in 1945 decided in its verdicts that only natural persons are the ones who commit crimes, not theoretical objects, and so, it tried natural persons but it did not prosecute the German state as a moral entity.

The principle of individual criminal responsibility has been adopted explicitly in the statute for each of the International Criminal Tribunal of the former Yugoslavia (ICTY), and the International Criminal Tribunal of Rwanda (ICTR).

The report of the Commission allocated to the establishment of an international criminal court came by the United Nations General Assembly resolution (49/53) of 9 December 1994, stressing the principle of criminal liability of a natural person for International Crime.

This principle was confirmed in the Statute of the International Permanent Criminal Court, where Article 25 of the Statute came to confirm that the personal jurisdiction of the court is limited to the trial of natural persons who were individually responsible for committing one of the crimes within the jurisdiction of the Court.

Thus it is clear that the implementation and application of the principle of criminal liability of a natural person in international law through international courts mentioned above, so the researcher supports the doctrine that the natural person is responsible for international crime directly because the realization of this principle supports the stability of the criminal justice of the international community and to preserve the integrity and security of mankind.

Sources:

It was used as a set of international laws and research.