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International criminal law is a relatively new and rapidly evolving body of legislation and case law. As a result of this, many questions are yet to be answered as to the nature of the crimes which fall within its jurisdiction. We will now however consider two of these issues, namely 1) to what extent there is a hierarchy of crimes in international criminal law, and 2) whether such a hierarchy should exist. In considering this it will be necessary to examine both the creation and application of international criminal law as a whole, as well as the creation and application of individual offences that fall under the title. This will not only allow us to determine whether there was ever an intention that some crimes should be seen to be more serious than others, but whether there is actual evidence that some offences are more serious than others, and whether they should be seen so. 1. To what extent is there a hierarchy of crimes in international criminal law? a) An academic viewpoint It has been suggested that ‘The weight of judicial opinion does not deem genocide to be categorically more serious than war crimes or crimes against humanity’ 1. Whilst it is true that no such opinion, case or statute expressly creates or states that there is a hierarchy of crime under international criminal law, I believe that this is the only argument in favour of that side of this view. It is my belief that whilst this is the case, the very nature of the offences, and of international criminal law in general, has created a clear hierarchy evidently present today. I will now set out to prove why. b) The foundation of international criminal law Before we delve deeper into the actual content of offences it is possible to argue that the very nature of international criminal law inherently calls for a hierarchy of crimes. This is because such a hierarchy can be seen in the very framework of Treaties establishing the 1 P.Akhavan Reducing Genocide to Law (Cambridge University Press 2012) page 59 law in this area. The 1998 Rome Statute, arguably one of the biggest influences in international criminal law (and source of the International Criminal Court (ICC)), is a prime example of this. The preamble to the Statute makes clear that the state parties to the Statute affirm ‘that the most serious crimes of concern to the international community as a whole must not go unpunished’2. The Statute later establishes that ‘The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole’3. This immediately suggests that a hierarchy of crimes within International Criminal Law exists. This is because the Rome Statute has set a minimum threshold for what constitutes an international crime. Offences will only fall under the jurisdiction of the Court when they are deemed to be sufficiently serious. As a result the Statute implies that the nature and effect of the crime is an important factor when considering International Criminal Law. Seemingly we can therefore assume that the offences then listed in Article 5(1) of the statute (such as genocide and crimes against humanity) have been evaluated to be so serious that they fall within the jurisdiction of the ICC. It is unlikely that each of these offences were held to have the same consequences as one another. Therefore it would seem sensible to conclude that some of these crimes are seen in the eyes of the international community to be more heinous than others. It is possible however to dispute this view. It can be argued that the crimes of concern to the international community is less about the consequences of them and more a matter of whether national justice systems can act effectively to address them. It can be suggested that the offence of terrorism is a prime example of this because it ‘involve[s] hundreds of deaths, in appalling circumstances, and… feature[s] in the headlines of the world’s newspapers. But [it is] of little concern to international justice because the crime is adequately prosecuted by the domestic courts’4. If a hierarchy was present in international criminal law terrorism would therefore be included as an offence under the 2 Rome Statute of the International Criminal Court (1998) – Preamble 3 Ibid. Article 5(1) 4 William A. Schabas, An Introduction to the International Criminal Court, 3rd Edition (Cambridge University Press 2007) page 83 Rome Statute, because the consequences of it are aligned to that of war crimes and crimes against humanity which are present. However the fact that ‘acts of terrorism are prohibited by international humanitarian law and may constitute a war crime’5 would appear to contradict this. Although the offence of terrorism is not itself a crime under international criminal law, it is provided for in the Geneva Convention that ‘Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’ 6. This would suggest that terrorism when sufficiently serious, can be prosecuted under international criminal law as a war crime. This further supports the idea that the very nature of international criminal law inherently calls for a hierarchy of crimes. c) ‘The crime of crimes’ – Is there a most serious offence? Although there is a presumption that all crimes under the Rome Statute are serious, it does not expressly provide for a hierarchy of offences. However, there is a clear case to argue that some crimes are more serious than others7. Genocide has long been described as ‘the ultimate crime’ which ‘should be placed at the apex of the pyramid of international crimes above crimes against humanity and war crime[s]’ 8. We shall now examine whether this is truly the case. i) Genocide, crimes against humanity, and their distinction from other offences It is easy to see through a closer examination of the law of genocide why it has been said to be ‘in a category all by itself’9 distinct from other crimes punishable by the ICC. This is perhaps illustrated most effectively in Article 33 of the ICC Statute which sets out the 5 R.Creyer et al An Introduction to International Criminal Law and Procedure 3rd Edition (Cambridge University Press 2014) 6 Additional Protocol I (1977) of the Geneva Convention (1949) Article 51(2) 7 W.A.Schabas The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) pages 40-41 8 A.Brannigan Beyond the Banality of Evil (Oxford University Press 2013) page 25 9 A Krammer War Crimes, Genocide, and the law (Praeger 2010) page 45 defence of superior orders. Paragraph 1(c) of Article 33 states that when an order is manifestly unlawful it cannot be used as a defence to the crime that has been committed. The Canadian Supreme Court in the case of Finta confirmed that an order is manifestly unlawful when it is so outrageous that it should not be able to be relied upon as a defence in a court of law10. That fact that paragraph 2 goes further to explain that ‘orders to commit genocide and crimes against humanity are manifestly unlawful’ 11 would therefore appear to provide valuable insight into the view that there is a hierarchy of crimes in International Criminal Law. The reason for this is because Article 33 suggests that there is something in the nature of crimes of genocide and crimes against humanity that distinguishes them from other offences. Similar to the refusal to allow duress to be a defence to murder under British law, Article 33 implies that the lack of free-will of the defendant shall not provide an escape from prosecution because these crimes are so bad that they should not under any circumstances be committed or excused. This is in contrast to orders to commit other offences such as war crimes. Although they can be ‘manifestly unlawful’, they are not by their nature automatically deemed to be so. This would seem to suggest therefore that genocide and crimes against humanity are inherently more serious than war crimes because of the refusal for such a defence to be used. This further forwards the argument supporting the idea of a hierarchy of crimes. ii) Genocide and the distinction from crimes against humanity Having established that genocide and crimes against humanity form the top tier of the hierarchy of international crimes, I will now direct attention to the development of the law of genocide to support how ‘genocide is different’ and is the offence that most obviously ‘[cries] out for punishment’12 even though there is obvious similarities between it and crimes against humanity. 10 R v Finta, 104 ILR pages 285 and 322 11 Rome Statute op.cit Article 33(2) 12 A.Krammer, op.cit pages 45 and 82 Genocide first took prominence during World War Two. The Holocaust ‘led to the… Genocide Convention of 1948 and to the recognition of genocide as an international crime against humanity and then as an international crime in its own right’ 13. During the trials at Nuremberg International Military Tribunal, genocide was tried as a crime against humanity. However the eventual need to extract genocide from crimes against humanity to create a new offence would seem to support the idea that there is a hierarchy of crimes. This is because it suggests there was a need to single Genocide out from other crimes of a similar manner because there is an element of it which requires special recognition on the international stage. Genocide was originally separated because of the requirement, at the time, for crimes against humanity to have a nexus to armed conflict. The General Assembly of the United Nations felt that such a requirement limited the application of genocide which should be more widely applicable because it is an offence not merely restricted to war 14. However since the removal of this requirement for crimes against humanity it is the specific intent requirement that provides greater clarity as to why genocide requires its own offence. The intent ‘to destroy, in whole or part’15 a group protected under the Convention shows the reason why this offence is to be seen as more serious than any other. It is an intent ‘not directed at people based on what they have done, or even…mere random selection….[but] for having certain characteristics that they could not help having’ 16. It is arguably hard to fathom any reason to destroy that is less justified than this. It highlights the senselessness and absurdity of attempted justifications for genocide. No such requirement is present in crimes against humanity which requires such baseless intent. This in my view makes it impossible to reconcile the two offences as being of the same severity, creating a hierarchy as a result. iii) The scope of genocide as a crime 13 L.May & Z.Hoskins International Criminal Law and Philosophy (Cambridge University Press (2010) page 59 14 Cryer et al op.cit page 207 15 Convention on the Prevention and Punishment of the Crime of Genocide (1948) Article II 16 L.May Crimes Against Humanity – A Normative Account (Cambridge University Press 2005) page 158 Further support for the argument that genocide is more serious than crimes against humanity, and other offences, can be found in the scope of genocide in its application. This is particularly so in considering general principles of liability under international criminal law, and specifically, the concept of inciting an offence. Although other offences such as war crimes require proof that the incitement ‘was a clear contributing factor to the commission of the crime’17, incitement of genocide is expressly made an offence in Article 3(c) of the Genocide Convention. As such ‘it is not [even] necessary to prove than anyone even attempted to commit genocide’18. This special distinction of genocide from other crimes again points towards it being the most serious of all offences. This is because it implies that as a crime it is so bad that even fruitlessly attempting to get others to conduct it is sufficient for punishment. As a result it requires a broader category of liability to reflect this. This view is further supported by the fact that genocide has ‘attained status of a ius cogens norm and an erga omnes obligation on states’19. It is so serious that no one is ever immune from prosecution under it and it is applicable to the citizens of all states even if that state is not party to the Genocide Convention. d) Conclusion – an implied hierarchy of crimes Having considered in depth the offences under International Criminal Law I have shown four arguments in favour of the view that there is a hierarchy of offences in international criminal law. Firstly, that the Rome Statute shows the type and consequences of an act to be important in deciding whether it is serious enough to require international prosecution. Secondly, that genocide and crimes against humanity are more serious than war crimes and other international crimes because liability for them is more difficult to excuse; 17 Blaskic, ICTY T.Ch . I, 3rd March 2000 paragraph 270 18 Cryer et al op.cit page 377 19 Ibid. page 205 thirdly, that genocide is more serious than crimes against humanity because of the nature of the offence and what the purpose behind it is. Finally, that the scope of offences under genocide is much larger than any other offence. I believe that I have shown that whilst there is no explicit hierarchy of offences in international criminal law, the hierarchy does exist and is evident through the way in which genocide is the hardest crime to both be proved and have a defence to. This high standard reflects the seriousness of the crime. 2. Should there be a hierarchy of international crimes? It has been argued that the presence of a hierarchy of crimes in international criminal law is beneficial. As we have seen ‘Genocide is often characterized as the greatest of evil acts. [But it] is difficult to fathom because of the sheer size of the planned assaults and murders’20. The stigma attached to a successful prosecution of the most serious of offences such as genocide or crimes against humanity ensure that an individual is properly recognised for the severity of the crimes which they have committed. By placing these “labels” on them the international community associates these individuals with the most famous cases of genocide such as the Holocaust, which allows them a perspective of the crimes that have been committed. It has been said that ‘In the interests of international justice, genocide should not be diluted or belittled by too broad an interpretation. Indeed, it should be reserved only for acts of exceptional gravity and magnitude which shock the conscience of humankind and which, therefore, justify the appellation of genocide as the ‘ultimate crime’21. But whilst this supports the view that there should be a hierarchy of international crimes, it can be easily undermined and have the opposite effect. My arguments in support of this statement are detailed below. 20 L.May, Crimes Against Humanity op.cit page 15 21 Karadzic and Mladic, ICTY, 27th June 1996 pages 15-16 Whilst most of the arguments that follow will be made in relation to the crime of genocide, many can also be applicable to offences of a less serious nature. a) Denial of successful prosecution under the more serious offences In beginning my argument as to why I believe a hierarchy of international crimes is largely a negative thing, I will first examine the effects in which a refusal to trial someone under a more serious offence can have a detrimental effect on both the view taken of the perpetrator and the view on the suffering of the victims. Since crimes such as genocide have been granted such negative attention, there is often a desire following atrocities for an individual to be tried for the more serious crimes in order to bring their suffering into context. As a result there is a danger that the term will be appropriated for ‘atrocities that fall outside the definition’ despite the ‘dreadful suffering they caused’22. This is an issue because if the use of genocide is made too readily available, it will reduce the stigma surrounding the offence. As a result of this the connotations of such a crime will be seen to be less serious than they currently are because a lower threshold is required to meet the criteria of the offence. This will lead to perpetrators of offences such as genocide not receiving the same condemnation they deserve for being found guilty of such an offence. In addition to this risk, the choice, for example, to trial someone as having committed crimes against humanity rather than genocide can also have a negative effect on the victims of the atrocity. This is because ‘Not to use the term may seem like a judgement on the suffering of a group of victims’23. By denying prosecution under the more severe of offences available, victims could be left feeling that what they experienced and had to endure is being somewhat undervalued and reduced as a result. This reason for this is because a hierarchy of offences allows for comparisons to be made between offences and the effects on their victims. By stating that victims of crime A experienced genocide and victims of crime B experienced crimes against humanity, the suffering of victims of crime 22 Cryer et al op.cit page 205 23 Ibid. page 206 B is reduced because genocide is generally perceived to be the more serious of the two offences. This is despite the fact that ‘The gravity of the crime can vary so dramatically’ and that ‘there is often great overlap in the offences themselves’24. Although the actual gravity of the specific intent of the crime of genocide may be worse, this does not automatically mean that the experience of the victims will be so also. b) Protection of the stigma of genocide Genocide as a crime requires a fine balancing act. Although in Part A, I cautioned about the risk of making the crime of genocide too available an offence for prosecution, it can however also be currently said to be too restricted. This reason for this is because the word ‘Genocide has taken on a mystique that creates the impression that [it] can adequately capture the pinnacle of evil that frequently defies rational comprehension’25. In believing that the stigma we have attached to the word genocide (being the ‘crime of crimes’), sufficiently captures the nature of the crime itself, the law on genocide has become too restrictive in an attempt to retain this special status of the crime and protect any interference against it. As a result it is possible to argue that there should not be a hierarchy of crimes under international criminal law. This is because the presence of a hierarchy inadvertently creates pressure on those applying the law in courts and tribunals to maintain it. Evidence for this can be see most clearly in the protected groups listed in the Genocide Convention. The crime of genocide only requires an ‘intent to destroy, in whole or part, a national, ethnical, racial or religious group’26. No other crime under international criminal law is so restrictive in this way. Criticism can be made that this list has not been widened to include other groups which should arguably be seen to be protected groups under the Convention. An example would be groups of a differing sexual orientation, or those with a disability who should be given equal protection under the Convention. Although the case 24 A.Brannigan .op.cit page 25 25 Ibid. 26 Genocide Convention op.cit. Article 2 of Akayesu27 has attempted to broaden this approach, later cases, including decisions of the International Criminal Court have ‘kept to the view that the four [original] groups are the exclusive focus of the Genocide Convention’28. This is problematic because it could arguably lead to situations which are clearly genocide not being treated as such. With application of this modern approach to the Holocaust retrospectively, it would seem absurd to suggest that whilst the extermination of the Jewish people was clearly an act of genocide, an act of ethnic cleansing of those who were disabled or of a different sexual orientation happening right alongside was not. In further support of the view that a hierarchy of international crimes is problematic in relation to genocide because of the need to retain the stigma of it being ‘the crime of crimes’, reference can be made to the case of Jelisic29 where the court ‘dismissed the charge of genocide to avoid applying the label of genocide to a low-level thug’ 30. This arguably shows how a hierarchy of offences can lead to a situation where international crimes are being applied to suit the facts, rather than the facts being applied to the relevant crimes. The retention of the hierarchy of offences can be said to outweigh the importance of achieving justice, so that cases of genocide at their purest form are given, fully, the condemnation they deserve, even if it means not applying the “label” in more ambiguous situations of it. c) Undermining lesser offences In consideration of the other end of the scale, the ‘lesser’ international crimes such as war crimes, it could be argued that the presence of a hierarchy undermines the seriousness of these offences as they are judged in comparison to crimes such as genocide. At the beginning of this essay I discussed how international crimes, punishable under the jurisdiction of the International Criminal Court, were so because they were deemed to be 27 Akaysu, ICTR T. Ch I, 2nd September 1998 paragraph 516 28 Cryer et al op.cit page 211 29 Prosecutor v Jelisic, ICTY T. Ch. II 11th December 1998 30 A.Brannigan op.cit page 25 ‘the most serious crimes of concern to the international community as a whole’ 31. It could be argued therefore that the emphasis placed on crimes such as genocide and crimes against humanity as being more serious undermines this view. This is because it creates the impression that offences such as war crimes are not as serious and therefore arguably more acceptable as a consequence because they do not result in the same widespread atrocities or consequences that occur with the more serious offences. This view is often held despite the fact that it is often questioned ‘What could be more repugnant than crimes committed by armed forces against helpless civilians [?]’ 32. Although an individual war crime will usually not be committed on the same scale as an offence of genocide or a crime against humanity, it does not necessarily mean that it is an offence of less concern to the international community as a result. It could also be argued that the attention in relation to academia and media made towards more serious crimes further highlights this issue of having a hierarchy of crimes. Because war crimes are more routinely tried in national courts on a more frequent basis it could be argued that they have become an everyday international criminal offence, like the common assault of British criminal law, whereas ‘genocide stands to [international criminal law] as premeditated murder stands to intentional homicide’33. As a result of this almost routine nature view of the offence the seriousness of war crimes has been downgraded behind a hierarchy which directs attention and emphasis at other offences. d) Conclusion – International crimes without a hierarchy Whilst a hierarchy of international crimes has limited benefits, I have argued that it should not have a place in international criminal law. This is because it can make victims feel less valued, restrict application of the offences, and undermine those offences which are not seen to be the most serious. 31 Rome Statute op.cit Article 5(1) 32 A Krammer op.cit page 82 33 W.A.Schabas Genocide in International Law (Cambridge University Press 2000) page 12 Having made these arguments however, I must admit that I believe it is unlikely that a list of international crimes could ever exist without one. Although genocide, crimes against humanity and war crimes all carry the same maximum sentence of life imprisonment, they will always be viewed in an order of seriousness. This is because the hierarchy present is too well established for them ever to been seen as being on an equal footing. Bibliography Text P.Akhavan Reducing Genocide to Law (Cambridge University Press 2012) William A. Schabas, An Introduction to the International Criminal Court, 3rd Edition (Cambridge University Press 2007) R.Creyer et al An Introduction to International Criminal Law and Procedure 3rd Edition (Cambridge University Press 2014) W.A.Schabas The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) A.Brannigan Beyond the Banality of Evil (Oxford University Press 2013) A Krammer War Crimes, Genocide, and the law (Praeger 2010) L.May Crimes Against Humanity – A Normative Account (Cambridge University Press 2005) W.A.Schabas Genocide in International Law (Cambridge University Press 2000) Legislation Rome Statute of the International Criminal Court (1998) Additional Protocol I (1977) of the Geneva Convention (1949) Convention on the Prevention and Punishment of the Crime of Genocide (1948) Cases R v Finta, 104 ILR pages 285 and 322 Blaskic, ICTY T.Ch . I, 3rd March 2000 Karadzic and Mladic, ICTY, 27th June 1996 Akaysu, ICTR T. Ch I, 2nd September 1998 Prosecutor v Jelisic, ICTY T. Ch. II 11th December 1998