ANTONY EDMUND MICALLEF Thesis Submitted to the University of London for the Degree of ...

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THE CRIMINAL OFFENCE IN INTERNATIONAL LAW
By
ANTONY EDMUND MICALLEF
Thesis Submitted to the University of London
for the Degree of Doctor of Philosophy in International Law
London School of Economics and Political Science
November 1991
UMI Number: U048646
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ABSTRACT
The purpose of this thesis is to provide a study of
a much neglected concept in international law, namely the
criminal offence. The work consists of four parts which
incorporate ten chapters. Part I introduces the study by
examining the way in which the concept of criminal offence
has developed through the various recognised sources of
international law. The difficulties involved in
distinguishing the criminal offence from other unlawful
acts in international law, as well as the problem of
defining the concept, are issues which are addressed in
Part II. Part III examines seventeen classified criminal
offences and practices in international law in order to
determine the juridical indicia of the concept. Finally,
Part IV addresses the legal consequences engendered by the
concept of criminal offence, namely international criminal
responsibility. Individual as well as State criminal
responsibility in international law are discussed,
particularly, in the light of the substantial contributions
made by the International Law Commission in this field.
The author has limited his research to source material
available up to July 1991.
iii
TABLE OF CONTENTS
Page
Abstract ii
Table of Contents iii
Acknowledgement viii
Abbreviations ix
Table of Cases xiii
PART I
INTRODUCTION
Chapter 1. The Sources of International law
and the Concept of Criminal Offence 1
1. a. International Custom 1
b. Treaties 3
c. General Principles of Law Recognised
by Civilised Nations 9
d. Judicial Decisions 12
e. The Writings of Publicists 12
2. The Concept Jus Coaens and the Criminal
Offence in International Law 12
PART II
IDENTIFICATION AND DEFINITION OF THE CRIMINAL OFFENCE
Chapter 2. The Criminal Offence: Problems of
Identification and Designation 22
1. Introduction 22
2. The need to distinguish in international
law criminal offences from other unlawful acts 23
a. Practice of the International Court 24
b. Doctrine 29
3. The meaning attributed to the term
"International Crime" 33
a. Traditional Meanings 33
b. Sui Generis Meaning 35
4. The term "International Crime" in Practice
and Doctrine 37
5. The Problem of Designation in view of the
terminology used: 46
a. International Infraction 46
b. "Delit International" 47
c. "Offences Against the Law of Nations" 49
and other labels
iv
d. Treaty Practice 53
6. Conclusion 54
Chapter 3.Defining the Concept of Criminal
Offence 57
1. Introduction 57
2. Doctrine 57
3. Judicial Decisions 66
4. The Work of the International Law
Commission 74
a. The Nuremberg Principles, the 1950-1954
Draft Code of Offences and the Draft
Code of Crimes Against Peace and Security of
Mankind: 1984-1991 74
b. Draft Articles on State Responsibility 84
5. Conclusion 95
PART III
THE JURIDICAL FEATURES OF THE CRIMINAL OFFENCE
RESULTING FROM ACTS RECOGNISED AS CRIMES IN
INTERNATIONAL LAW
Introduction 97A
Chapter 4. Classical Crimes 98
A. Piracy Jure Gentium
B. Slavery 104
Chapter 5- Conflict - Related Crimes and Practices 119
A. Aggressive War 119
B. War Crimes 135
I. Jurisdiction and Individual Responsibility 135
(a) The First World War 136
(a.i.) The 1919 Paris Peace Conference,
The Treaty of Versailles and the
1920 Peace Treaties: Individual
Responsibility 137
(a.ii.) Jurisdiction Ratione Personae 139
(b) The Second World War 144
(b.i.) Diplomatic Statements 144
(b.ii.) Jurisdictional Principles Applied
In Immediate Post War National
Legislation 147
V
(b.iii.) The 1949 Geneva Conventions and
Israel/s 1950 Nazis and Nazi
Collaborators (Punishment) Law 150
(c) Current Practice 157
(c. i.) Canada 158
(c.ii.) Australia 165
(c.iii.) United Kingdom 167
II. Superior Orders 170
III. The Political Offence Exception
Principle 178
IV. The Principle of Statutory Limitation 184
C. Aggression 189
D. The Recruitment, Use, Financing and
Training of Mercenaries 203
Chapter 6. Human Rights Violations as Crimes
A. Crimes Against Humanity 215
I. Juridical Nature of the Concept 215
II. Individual Responsibility,
Justiciability and the defences of
"Superior Orders", the Political
Offence Exception and Statutory
Limitation 220
B. Genocide 222
I. Jurisdiction 228
(a) Municipal Level 228
(b) International Level 236
II. The Political Offence Exception Question 238
III. Applicability of the Rule of Statutory
Limitation 240
C. Apartheid 242
I. The Apartheid Convention 254
II. Provisions of the Apartheid Convention
Relevant to the Concept of the Criminal
Offence and its Juridical Features 256
(a) The Question of Apartheid as a" Crime
Against Humanity" 256
(b) Jurisdiction 259
(c) Individual Criminal Responsibility 262
(d) Superior Orders 264
III. Apartheid and Jus Coaens 264
IV. Apartheid and Additional Protocol I
of 1977 to the 1949 Geneva Conventions 266
vi
D. Torture 267
I. International Instruments 269
(a.i.) The 1919 Paris Peace Conference 269
(a.ii.) The Nuremberg Charter and Allied
Control Council Law No.10, 1945 270
(a.iii.) The 1949 Geneva Conventions 276
(b.i.) Declaration on Protection From Torture 277
(b.ii.) The UN Convention on Torture 279
(b.ii.l) Jurisdiction 280
(b.ii.2) Superior Orders 289
(b.ii.3) The Non-Derogable Nature of Torture 290
(b.ii.4) Torture - A Political Offence 292
(b.ii.5) The Status and Criminal
Responsibility of the Torturer 293
(b.iii.) The OAS Convention on Torture 300
II. Judicial Decisions and Municipal
Legislation 302
Chapter 7. Crimes Affecting the Political and
Economic Interests of the International Community
A. "Air Law Crimes" 309
I. Analogy with Piracy Jure Gentium 310
(a) Question of Designation 310
(b) Piracy Jure Gentium and Unlawful Seizure
of Aircraft 312
II. Jurisdiction 315
(a) Juridical Nature of the Crimes 315
(b) Bases of Jurisdiction 316
(c) Priority of Jurisdiction 324
(d) The Aut Dedere Aut Punire Principle 329
III. The Political Offence Exception to
Extradition 335
B. Crimes Committed Against Internationally
Protected Persons and Diplomats 337
I. Designation of the Concept 338
II. Jurisdiction 340
III. Legislative Practice 347
IV. The Crimes as Political Offences 348
C. The Taking of Hostages 351
I. In Time Of War 352
II. In Time of Peace 361
(a) The Hostages Convention 362
vii
(a.i.) The Preamble 363
(a.ii.) Jurisdiction 364
(a.iii.) The Political Nature of the
Offence 375
D. International Terrorism 377
Chapter 8. Other Practices
A. Unlawful Dissemination of Narcotic
Drugs and Psychotropic Substances 388
B. Damage to the Environment 395
C. Economic Aggression 401
PART IV
INTERNATIONAL CRIMINAL RESPONSIBILITY
Chapter 9. Individual Criminal Responsibility 408
1. The Work of the International Law Commission 408
(a) The Nuremberg Principles 408
(b) The Draft Code of Offences: 1950-1954 413
(c) The Draft Code of Crimes Against
the Peace and Security of Mankind:
1985-1991 416
2. The Defence of Superior Orders 423
(a) The Nuremberg Principles 423
(b) The Draft Code of Offences: 1950-1954 424
(c) The Draft Code of Crimes Against
the Peace and Security of Mankind:
1986-1991 425
3. Doctrine 431
Chapter 10. State Criminal Responsibility 434
1. Consideration of the Concept by the ILC 434
2. Doctrine 445
Bibliography 449
viii
Acknowledgment
Of the pages written for this thesis, this has proved to be
the most taxing to draft as I will never be able to fully record
my gratitude for the support given by colleagues to complete the
task that had been set. I trust that completion of the thesis
will be of some satisfaction to them.
I am grateful for the attention and advice afforded me, during
the initial years of my studies, by Professor Leonard Leigh,
Professor of Criminal Law, at the London School of Economics.
I would also like to thank the Graduate Office of the London
School of Economics for various bursaries, and especially the
British Council for offering me a Foreign and Commonwealth Office
Academic Award, all of which contributed in no small measure to
the completion of my work.
My interminable demands upon the Library Staff at the
Institute of Advanced Legal Studies did not deserve the courtesy
and patience with which they were answered. Their assistance is
much appreciated.
This thesis was supervised by Professor Rosalyn Higgins Q.C.,
who was unfailing in her attention, patience, encouragement and
wise counsel throughout my years as a student at the School. I
am eternally grateful and indebted to her.
No words will adequately express the extent of the
indebtedness to my mother and my father, save that neither my
stay nor my studies at the University of London would have ever
been possible without their love and support. This work is
dedicated to them.
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