02 September 2013

International criminal courts and tribunals work with unclear legal theory

war crimes

The daunting task of international criminal courts and tribunals to adjudicate core international crimes such as genocide, war crimes and crimes against humanity is complicated by uncertainty in the interpretation of legal theory in international criminal law. Historically, a relatively young discipline of international criminal law has been viewed as a melting pot of legal traditions which stem from common and continental law jurisdictions. For that reason, it is of particular importance to clarify how legal norms which were inspired by national legal traditions shall be adjusted for the purposes of international criminal law, concludes Iryna Marchuk, an associate professor in criminal law at the University of Copenhagen, in a newly published book.

International criminal courts have been recently criticised for the change in their legal practice. The debate has been sparked by acquittals of a few high profile persons charged with war crimes and crimes against humanity. According to Iryna Marchuk, main reasons that led to such acquittals are inherent weaknesses in the international criminal law theory and its application.

ICC building in The Hague.

The ICC building in The Hague. Copyright credit: Jerry Lampen

“The interfusion of national criminal theory into international criminal courts has inadvertently created confusion as to the understanding of major substantive law concepts, which were ‘brought along’ from national jurisdictions, rather than carefully filtered to meet the needs of international criminal law,” says Iryna Marchuk.

It is problematic that the understanding of what constitutes ‘crime’ in international criminal law is still at the heart of debate. In contrast to perpetrators of domestic crimes, high-ranking military and political leaders charged with international crimes are rarely physically present at the scenes of actual crimes. This, however, does not mean that they are less culpable or they do not have ‘blood on their hands’. Most of them commit crimes through the state apparatus, army or rebel groups. In order to demonstrate guilt of such perpetrators, it is necessary to prove they were ‘masterminds’ of international crimes and intended those crimes to be committed.

Proving guilt of ‘masterminds’ of international crimes

The cornerstone of criminal law, regardless of whether national or international, is the principle of culpability, which requires the state of guilty mind on the part of perpetrator.  The proof of guilty mind or mens rea, speaking in strictly legal terms, is one of the most challenging tasks to be undertaken by the prosecutorial divisions of international criminal courts.  Drawing on a number of selected common law (UK and USA) and continental law jurisdictions (Germany, France, Russia and Denmark), Iryna Marchuk examines a number of problematic theoretical concepts in her newly published book, such as mens rea, modes of liability, defences in international criminal law through the lens of comparative law. This has enabled Iryna Marchuk to infer general principles in establishing criminal responsibility that exist in a number of national jurisdictions, which could serve as a firm basis for developing the theory of international criminal law.

Theoretical weaknesses of international criminal law

Fatou Bensouda

Chief prosecutor of the ICC, Fatou Bensouda. copyright credit: Estonian Foreign Ministry

The difference in the opinions as to the construal of major fundamental concepts, such as mens rea and modes of liability, has been greatly affected by the diverse geographical composition of legal practitioners (judges, prosecutors, defence counsels) who reinforce their national perceptions of law in international criminal courts.

Iryna Marchuk emphasises the importance of working out precise theoretical concepts which form the foundation of international criminal law in order to secure convictions based on the strict adherence to the principle of culpability.

“This can only be done by seeking inspiration in general principles of law across a number of national jurisdictions and fine-tuning them for the purposes of international criminal law. In doing so, it will be less likely that top political and military leadership guilty of the most serious crimes will get away with impunity,” Iryna Marchuk concludes.


Associate professor Iryna Marchuk
Phone: +45 3532 3330

Communication officer Lise Steen Nielsen
Phone : +45 2132 8005