1. Joint Seminar at NCCU in Taiwan
The protected interests of international core crimes and their impacts on States’ obligations
Joint Seminar at NCCU in Taiwan
31 Oct and 1 Nov 2017
Megumi OCHI
Post-Doctoral Research Fellow (SPD) of Japan Society for the Promotion of Science (JSPS)

2. ‘The most serious crimes of international concern’
The Problem
Genocide
War crimes
CAH
Aggression
4 core crimes
‘The most serious crimes of international concern’ …
Many arguments on the desirability of states’ obligation to prosecute these crimes based on universal jurisdiction
(Implementation of The Rome Statute of the International Criminal Court)

3. In reality…
States’ obligation differs depends on different core crimes
Genocide
Grave breaches
Other war crimes
CAH
Aggression
Obligation to prosecute
(Genocide Convention & Geneva Conventions)
No obligation to prosecute
(ILC’s attempt on CAH)

4. Purpose of the research
RQ: Do substantive features of the core crimes have any impacts on difference in states’ obligations?
Argument:
the ‘state involvement’ requirement prevents states to prosecute CAH and aggression
States cannot be obliged to prosecute the core crimes that require an establishment of foreign state’s involvement.
The fundamental reason…Core crimes which require state involvement protect an international interest
= the co-existence of good states … ( ‘universal’ interest)
International community’s laziness? Or
Is there any internal/inherent factor? Does crimes’ nature have any impact ? Some crimes do not suit for State’s prosecution in nature?
…If so…imposing States obligations to prosecute on such crimes is unreasonable

5. Part I
Core crimes that require state involvement

6. The origin of the concept ‘crimes under international law’
Genocide
War crimes
CAH
Aggression
The idea of international tribunal to judge a state’s act (Victors’ justice (not ‘a victor’s’ justice) )
…Core crimes were supposed to be tried exclusively before international tribunals
The special elements (contextual elements) …Those that set the core crime apart from national crimes
’persons who, acting in the interests of the European Axis countries’（IMT, article 6)

7. Aggression
Genocide
War crimes
CAH
Aggression
‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression
‘“act of aggression” means the use of armed force by a State’ (ICC Statute 8bis)
=> State involvement is the requirement
Van Schaak (pp )
The enduring controversy over the crime stems from the fact that, especially as formulated for purposes of the ICC,81 the crime involves more than simply the conduct of anb individual defendant; it directly implicates state action as well in a way that other international crimes do not.82

8. Crimes against humanity
Genocide
War crimes
CAH
Aggression
‘acts when committed as part of a widespread or systematic attack directed against any civilian population’ ,‘pursuant to or in furtherance of a State or organizational policy to commit such attack’ (ICC Statute, Art. 7)
=> State involvement is the requirement
(except CAH involving organizations other than States)
64. Consequently, when the concept of crimes against humanity was developed in 1945, the prosecution as common crimes at the national level was deemed inadequate. Indeed, it was feared that with the involvement of State and government resources in the commission of heinous offences of such nature, the crimes would go unpunished if left solely to national prosecutorial authorities.
With the values of mankind being under attack by the specific threat,
considerations of State sovereignty {domaine réservé) were deemed irrelevant in these particular instances.
65. Having said the above, I believe that the historic origins are decisive in understanding the specific nature and fundamental rationale of this category of international crime. It is this understanding which guides me to conclude that a demarcation line must be drawn between international crimes and human rights infractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation. One concludes that the ICC serves as a beacon of justice intervening in limited cases where the most serious crimes of concern to the international community as a whole have been committed.^
Requirement of ‘state-like organization’ (Kaul)

9. Genocide & War crimes => State involvement is not required
CAH
Aggression
Genocide:
‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ (ICC Statute, Art. 6)
War crimes:
‘war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’.
=> State involvement is not required
Genocide,
Schabas, p. 956-
The presence of a state policy component with respect to genocide and, by analogy, crimes against humanity

10. Element of ‘state involvement’
Genocide
War crimes
CAH
Aggression
Crimes against humanity and aggression
…require an evaluation of state involvement
Q: When trying these crimes based on universal jurisdiction (crimes committed by a foreign state), is not this incompatible with jurisdictional immunity of state?

11. Part II Legal obstacle to prosecute the core crimes by national court:
Jurisdictional Immunity of state

12. Legal obstacle to prosecute the core crimes by national court
‘Domestic courts hearing aggression cases not involving their own nationals will essentially be sitting in judgment over the acts of a co-equal sovereign. The need to rule on the commission state's act of aggression implicates the principle of foreign sovereign immunity and its underlying philosophy, the maxim par in parem imperium non habet ('an equal has no power over an equal'). Justiciability concerns abound where domestic courts find themselves evaluating the legality of a foreign state's decision to use force.’ (Van Schaak, p. 149)

13. Legal obstacle to prosecute the core crimes by national court
The limitation on state’s jurisdiction ratione materiae
…Jurisdictional immunity ratione materiae?
Even if a foreign state is not the direct respondent or the accused, when the subject-matter of a trial necessarily assess and evaluate the foreign state’s act, this must be considered as a violation of the customary rule of state immunity

14. Jurisdictional immunity of state in criminal trial of an individual
Analogy of state immunity
National trial that involves assessment of foreign state’s act … indirectly judge the foreign state’s act
 immunity ratione materiae of states
Jurisdictional immunity ratione materiae is also applicable in any trial that require establishment of foreign state involvement

15. State practice
National legislation…exclusion of state involvement requirement
Cases…not successful in recent cases
(c.f. Eichmann…‘A state that plans and implements a "Final Solution" cannot be treated as par in parem, but only as a gang of criminals.’ (Eichmann, district court, para. 28))

16. Part iii
The fundamental reason: Difference on the protected interests

17. Categorization of core crimes based on procedural obligation
Crimes with State involvement
・Aggression
States cannot be obliged to prosecute because of principle of sovereign equality
・CAH by State
Crimes without State Involvement
・CAH by organization
States can be obliged to prosecute
・Genocide
・War crimes
Exclusion of state involvement element enabled states to prosecute these crimes without infringing sovereign equality

18. Core crimes are not 4 but 6
Genocide
Grave breaches
Other war crimes
CAH by organization
CAH by States
Aggression
These 2 crimes are non-prosecutable before national court
These 2 crimes may require further law- making on State obligations

19. Fundamental difference: protected interests of core crimes
Genocide
Grave breaches
Other war crimes
CAH by organization
CAH by States
Aggression
Core crimes which require state involvement
… protect an interest relevant to states (international)
= the peaceful co-existence of good states
international interest
(International community as a whole is interested)
Schabas, p. 982
individual crimes committed in isolation from abstract entities are of little or no interest at the international level. Indeed, the existence of a State policy may be the best criterion in distinguishing between individual crimes that belong to national justice systems, and international crimes with their special rules and principles concerning jurisdiction, immunities, statutory limitations, and defenses.

20. Fundamental difference: protected interests of core crimes
Genocide
Grave breaches
Other war crimes
CAH by organization
CAH by States
Aggression
Fundamental difference: protected interests of core crimes
Core crimes which do not require state involvement
… protect interests that are separated from states (internationality)
Genocide…right not to be discriminated against
War crimes…victims’ fundamental human rights
Universal interests
(States are interested regardless where these crimes are committed)
Schabas, p. 982
individual crimes committed in isolation from abstract entities are of little or no interest at the international level. Indeed, the existence of a State policy may be the best criterion in distinguishing between individual crimes that belong to national justice systems, and international crimes with their special rules and principles concerning jurisdiction, immunities, statutory limitations, and defenses.

21. Traditional categorization
Genocide
Grave breaches
Other war crimes
CAH by organization
CAH by States
Aggression
Traditional categorization
Other International Crimes
Core Crimes
Terrorism
Organized crimes
Cyber
Corruption
Piracy

22. Proper categorization?
Genocide
Grave breaches
Other war crimes
CAH by organization
CAH by States
Aggression
Proper categorization?
Crimes against universal value
Crimes against international value
Terrorism
Organized crimes
Cyber
Corruption
Piracy

23. Conclusion

24. Conclusion The fundamental reason:
Genocide
Grave breaches
Other war crimes
CAH by organization
CAH by States
Aggression
Conclusion
Substantive features of the core crimes that have impacts on difference in states’ obligations …
the state involvement requirement prevents states to prosecute CAH by states and aggression
=> States cannot be obliged to prosecute ibefore national court aggression and CAH by a state
The fundamental reason:
CAH by state and aggression protect an international interests
Genocide and war crimes protect a common interests

25. Genocide
Grave breaches
Other war crimes
CAH by organization
CAH by States
Aggression
Implication
Legislation should be different between concept of crimes which protect international interest and universal interest
Crimes of international interest => exclusively international tribunals’ matter
Crimes of universal interest => subject to universal jurisdiction of any state (like piracy, terrorism, organized crimes)