Table Of ContentProsecuting International Crimes: A Multidisciplinary Approach
Queen Mary Studies in
International Law
Edited by
Malgosia Fitzmaurice
Phoebe Okowa
VOLUME 24
The titles published in this series are listed at brill.com/qmil
Prosecuting International Crimes:
A Multidisciplinary Approach
Edited by
Bartłomiej Krzan
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
Names: Krzan, Bartlomiej, editor.
Title: Prosecuting international crimes : a multidisciplinary approach /
edited by Bartlomiej Krzan.
Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Queen Mary
studies in international law ; volume 24 | Includes index.
Identifiers: LCCN 2016018996 (print) | LCCN 2016019120 (ebook) | ISBN
9789004317406 (hardback : alk. paper) | ISBN 9789004323667 (E-book)
Subjects: LCSH: International crimes--Law and legislation. | International
criminal law. | International criminal courts. | Prosecution
(International law)
Classification: LCC KZ7139 .P76 2016 (print) | LCC KZ7139 (ebook) | DDC
345/.05042--dc23
LC record available at https://lccn.loc.gov/2016018996
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Contents
List of Contributors vii
Introduction ix
part 1
Individual Criminal Responsibility under International Law
1 Individual Responsibility and Collective State Responsibility for
International Crimes: Separate or Complementary Concepts under
International Law? 3
Joachim Wolf
2 Customary International Law as a Basis of an Individual Criminal
Responsibility 53
Władysław Czapliński
3 Immunities before International Criminal Courts 70
Robert Uerpmann-Wittzack
4 The Attribution of International Criminal Responsibility for Serious
Violations of Human Rights and International Humanitarian Law to
Senior Leaders 81
Krzysztof Masło
PART 2
Substantive Issues
5 Crimes against Civilians during Armed Conflicts 99
Patrycja Grzebyk
6 Remedying Torturous Effects of the Use of Chemical Weapons under
International Law
Regina Valutytė and Neringa Mickevičiūtė 115
vi Contents
part 3
Institutional and Procedural Issues
7 The Judicial Independence of Judges within International Criminal
Courts 135
Witold Jakimko
8 Human Rights and International Criminal Law 153
Bartłomiej Krzan
9 The Prosecutor of the International Criminal Court – Inquistorial or
Adversarial? 176
Karolina Kremens
10 Admissibility of Illegally Obtained Evidence in Proceedings before
International Criminal Courts 201
Wojciech Jasiński
part 4
Relevance of Domestic Approaches
11 Implementing the Nuremberg Principles in National Trials with Nazi
Criminals: Hesitation versus Enthusiasm towards Meeting the
Standards of Complementarity in the Modern International Criminal
Law 227
David Kohout
12 Sufficient Domestic Proceedings – The Standard of National Criminal
Proceedings before the icc in Context of Art. 17 of the Rome
Statute 255
Karolina Wierczyńska
13 The South African Truth and Reconciliation Commission in the Context
of Xenophobia, Cycles of Violence, and Epigenetic Trauma 274
Loammi Wolf
14 Prosecuting International Crimes in Lithuania: When Wounds Shape
the Law 299
Justinas Žilinskas
Index 311
List of Contributors
Władysław Czapliński
is Professor of International Law and Director of the Institute of Legal Studies
at the Polish Academy of Sciences, Warsaw.
Patrycja Grzebyk
is Assistant Professor at the Institute of International Relations of the University
of Warsaw.
Witold Jakimko
is International Judge at the Special Chamber of the Supreme Court of Kosovo
on Privatization Related Matters, Member of the European Union Rule of Law
Mission EULEX-Kosovo.
Wojciech Jasiński
is Assistant Professor in the Department of Criminal Procedure, Faculty of
Law, Administration and Economics, University of Wrocław.
David Kohout
is scientific researcher at the Faculty of Law Charles University in Prague.
Karolina Kremens
is Assistant Professor at the Department of Criminal Procedure at the Faculty
of Law, Administration and Economics at the University of Wrocław; formerly
(2009–2012) Assistant Prosecutor at the Regional Prosecutor’s Office in
Wrocław.
Bartłomiej Krzan
is Associate Professor at the Department of International and European Law,
University of Wrocław.
Krzysztof Masło
is Public Prosecutor of the District Prosecution Office delegated to the Regional
Prosecution Office in Warsaw-Prague, specializing in economic organized
crimes; also a research assistant at the Cardinal Stefan Wyszyński University.
Neringa Mickevičiūtė
is research assistant and a doctoral candidate at the Mykolas Romeris
University, Faculty of Law, Institute of International and European Union Law.
viii List of Contributors
Robert Uerpmann-Wittzack
is Professor of Public and International Law at the University of Regensburg
and a co-editor of the German international law journal Archiv des Völkerrechts.
Regina Valutytė
is Professor at the Department of International and eu Law at Mykolas Romeris
University.
Karolina Wierczyńska
is Assistant Professor in the Institute of Law Studies at the Polish Academy of
Sciences and managing editor of Polish Yearbook of International Law.
Joachim Wolf
is Professor emeritus of the Law Faculty, formerly Director of the Institute for
International Law of Peace and Armed Conflict, Ruhr University Bochum.
Loammi Wolf
runs the initiative Democracy for Peace and is a researcher at the Sanlam
Centre for Public Management and Governance University of Johannesburg.
Justinas Žilinskas
is Professor at International Law and eu Law Institute, Mykolas Romeris
University, Vilnius; Member of International Humanitarian Fact-Finding
Commission.
Introduction
Bartłomiej Krzan
The present book deals with the prosecution of international crimes. There are
currently a variety of approaches to the (proper) reaction towards such crimes.
This diversity may also be seen in the analyses contained here as they reflect
the different backgrounds, mainly legal, of the authors, and combine several
disciplines, making this a multidisciplinary study.
The main but certainly not exclusive point of reference is that of interna-
tional law, where responsibility was traditionally limited to the issue of state
responsibility. The idea of holding individuals responsible under international
law has had a long and difficult history. Despite the early attempts, it was only
in the aftermath of the Second World War that the revolutionary decision
to establish International Military Tribunals was made, which subsequently
paved the way to the development of international criminal responsibility. The
first part of the book is devoted to general issues of such development. In the
first substantive chapter of the book, Joachim Wolf provides an in-depth ex-
amination of the relation between the responsibility of states and individuals
under international law. The following contribution, by Władysław Czapliński,
analyses the customary basis of prosecuting individuals under international
law. The subsequent analyses offer examinations of specific issues: Robert
Uerpmann-Wittzack addresses the question of immunities before the inter-
national criminal courts, whereas Krzysztof Masło scrutinizes the attribution
of responsibility to senior political leaders under international criminal law.
When discussing the subject of our study, it is necessary to first define the
concept of an international crime. While being aware of manifold respective
definitions, it is convenient to start our consideration by referring to the fa-
mous and often-quoted jurisprudence of the Nuremberg Tribunal, where the
judges held that:
Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can
the provisions of international law be enforced. Individuals have inter-
national duties which transcend the national obligations of obedience
imposed by the individual state.1
1 International Military Tribunal (Nuremberg), Judgment and Sentences, October 1, 1946, 41
American Journal of International Law (1947), p. 221.
x Introduction
The passage referred to above has proven to enjoy a life of its own. It did not
define precisely what such crimes are; nor would it provide an exhaustive cata-
logue thereof. In the scholarly literature there are many lists of international
crimes.2 Different authorities provide different requirements. Be that as it may,
in terms of defining the crimes one would however be tempted to draw some
common features. Here we would define international crime as being based in
international law and constituting an offence to universal values, such as the
peace, security and well-being of the world.3 What makes this different from
traditionally understood crime is their scale, which stems from the involve-
ment of a state. In addition, there must exist universal interest in repressing
such crimes. The latter feature is adequately reflected in the Preamble to the
Rome Statute, where it refers to “the most serious crimes of concern to the
international community as a whole”.4
Alternatively, one may adopt a more pragmatic approach and consider in-
ternational crimes as crimes that fall within the jurisdiction of an international
criminal tribunal or a court. Such a stance proves to be concise and formally
acceptable, but nevertheless neglects some important features. First of all,
there are various international criminal jurisdictions offering different visions
of their subject-matter scopes. The description also does not take into account
the possibility of domestic prosecution. Finally, it is crucial to recognize the
peace versus justice dilemma. Even a cursory comparison of the relevant pro-
visions of the Rome Statute of the International Criminal Court with the re-
spective provisions contained in the statutes of its predecessors reveals evi-
dent progress in terms of developing the substantive rules.
Despite the elaborate definitions of the crimes included in the Rome
Statute, some controversies may nevertheless arise. Thus, the following part of
the book considers substantive issues. Patrycja Grzebyk investigates the prac-
tice of international criminal tribunals focusing on crimes against humanity
and large-scale war crimes against civilians while leaving other war crimes, in-
cluding minor ones, aside. Such a tendency reflects a far-from-easy symbiosis
of international criminal and humanitarian law. Against the latter background,
Regina Valutytė and Neringa Mickevičiūtė analyse the possibility of qualifying
2 See e.g. M.Ch. Bassiouni, “International Crimes: The Ratione Materiae of International Crimi-
nal Law”, in M.Ch. Bassiouni (ed.), International Criminal Law, Vol. i: Sources, Subjects, and
Contents (3rd ed. 2008), pp. 129 ff.
3 Cf. H.-J. Jescheck, “International Crimes”, in R. Bernhardt (ed.), Encyclopedia of Public Inter-
national Law, Vol. 2 (1995), p. 1120.
4 Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 United Nations
Treaty Series, pp. 3 ff.
