GoJIL Vol. 3, No. 2 (2011)
The Myth of 'International Crimes': Dialectics and International Criminal Law
Mayeul Hiéramente
Abstract
The label of 'international crime' for genocide, crimes against humanity and war crimes appears to be universally or at least widely accepted and casting doubt regarding this determination is considered a near transgression for an international (criminal) lawyer. The way international (criminal) lawyers label a crime influences the way they present it, their readers perceive it and the academic community reproduces it. Ultimately, repeated references to the presupposed 'international nature' influence the evolution of international (customary) law, blur the line between the 'international' and the 'national' and create an amalgam of wishful thinking, political aspirations, prosecutorial necessities and the evolution of substantive (criminal) law. This article scrutinizes why the current doctrine singles out a certain category of criminalized human rights abuses as 'international' and questions if genocide, crimes against humanity and war crimes should really be viewed as 'international crimes', while murder, theft or sexual abuse are largely being considered as 'national crimes' or 'ordinary crimes'. It concludes that there is no substantive reason for classifying these crimes as 'international': they are per se no threat to peace; they don't share a contextual element; war crimes and genocide are not per se determined by the scale of the abuses; implication of the state or state-like entities is typical for human rights abuses in general and not only the so-called 'international crimes'. However, common to all three crimes is the (perceived) need and wish for an international response to the commission of the crimes in question. If the state is implicated in the commission and the cover-up of some of atrocities, the 'international community' has reason to fear that accountability for and punishment of these crimes cannot be achieved on the national level. 'International prosecutions' of 'national crimes' can therefore be considered legal and legitimate under limited circumstances.
Download the full text as a PDF