27 / 464
13
AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL?
moral abhorrence at these acts; we are able to name these acts; yet we cannot really
explain what makes them so specific and tells them apart from other offences.
One of the first actors to try, albeit implicitly, to identify the main characteristic
of an international crime was the International Criminal Tribunal for the Former
Yugoslavia (hereafter the ICTY). In its 1995 decision in the
Tadić
Case
,
43
the
Appeals Chamber of the ICTY had to decide which acts counted as violations of
the laws or customs of war falling under Article 3 of its Statute. It concluded that
such acts had to meet four conditions: they had to constitute an infringement of a
rule of international humanitarian law; the rule had to be customary in nature (or,
exceptionally, conventional); the violation had to be serious, that is it had to constitute
a breach of a rule protecting important values, and the breach had to involve grave
consequences for the victim; and the violation had to entail the individual criminal
responsibility of the person breaching the rule.
44
The conditions
stricto sensu
apply
to war crimes only. Yet, they are not necessarily specific for them. The requirements
to have a legal basis in international law, be serious in nature and entail individual
criminal responsibility might be characteristic of all international crimes.
This view is partly shared by international law
scholars,
though the writings of
most of them
“are uncertain, if not tenuous, as to what they deem to be the criteria justifying
the establishment of crimes under international law”.
45
Yet, there are exceptions. Cassese
and Gaeta, for instance, assert that international crimes result from the cumulative
presence of four elements.
46
These crimes consist of violations of rules of international
law; such rules are intended to protect values of the whole international community
and consequently bind all states and individuals; there is a universal interest in
repressing such crimes; and no functional immunity applies to the perpetrators of
such crimes.
47
The first two elements are identical as under the ICTY definition. Yet,
unlike the Tribunal, Cassese and Gaeta do not see individual criminal responsibility
as an element of an international crime. For them, this feature stems from the nature
of the violated rule, i.e. from it being intended to protect important universal values.
No evidence is given in support of this claim, which, however, is far from self-evident.
The third element should most probably be considered as a variation to the second
one, as the universal interest in repressing a certain crime would most probably flow
from its universal nature. The last element, relating to immunity, seems to be more
43
ICTY,
Prosecutor v. Duško Tadić,
Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
44
Ibid.,
par. 94.
45
BASSIOUNI, M. Ch.: International Crimes,
op. cit.,
p. 132.
46
CASSESE, A., GAETA, P. (eds):
Cassese´s International Criminal Law.
Third Edition. Oxford University
Press, Oxford, 2013, pp. 20-21.
47
The list of crimes which according to Cassese and Gaeta have these elements encompasses, in addition
to the four classical crimes under international law (aggression, genocide, crimes against humanity, war
crimes), also torture and international terrorism.
Ibid.,
p. 21.