David Stewart - International Criminal Law in a Nutshell (Nutshells)

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International Criminal Law

In a nutshell

Second Edition

DAVID P. STEWART

Professor from Practice
Georgetown University Law Center

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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Preface to the Second Edition

The purpose of this book is to provide a self-contained introduction to the increasingly important field of international criminal law. It is aimed primarily at the beginning student and to complement the growing number of textbooks and treatises now in use in U.S. law schools. However, it may also serve as a helpful field guide for practitioners and others new to the topic.

Although its origins extend far back in history, international criminal law has taken definitive shape only in the past two decades. The war crimes trials at Nuremberg and Tokyo following World War II marked the first time that the international community acted to punish former high-level government officials for violations of international law. At the time, they seemed to offer the prospect of a truly international system of justice.

Yet the Cold War intervened, and it was nearly half a century before the international community again acted. The establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda and the subsequent creation of a permanent International Criminal Court, along with the exercise by some national courts of jurisdiction over individuals accused of the most serious violations of human rights, like former Chilean Head of State Augusto Pinochet, indicate new emphasis on the individual responsibility of State agents for their actions.

The field of international criminal law continues to evolve, institutionally and normatively. It now boasts a number of international and hybrid tribunals as well as an increasing array of treaties and agreements articulating international crimes and providing a basis for international cooperation such as extradition and mutual legal assistance. National authorities more frequently prosecute individuals for transnational or international offenses, and domestic courts are more often empowered to exercise extraterritorial criminal jurisdiction. Victims of widespread atrocities seek to recover compensation in the courts of foreign States under theories of universal jurisdiction.

More and more attorneys have had relevant experience in the field, either though work at the International Criminal Court, at an ad hoc or hybrid court or one of the human rights bodies, or as domestic prosecutors. Domestic practitioners increasingly encounter issues of international criminal law. In short, while it was once the purview of a few academics and scholars, international criminal law is more and more a main stream topic.

Like its predecessor, this second edition of the Nutshell focuses on the core concepts, institutions, and principles in an effort to make the field accessible to students and practitioners alike. It is not intended to be a comprehensive treatment but rather to provide an overview and to point the way for further investigations into particular topics.

David P. Stewart

January 2019

Acknowledgments

I am indebted to a number of wonderful student assistants at Georgetown University Law Center who provided invaluable research and writing contributions in the preparation of this book. Among those who contributed to the first edition were Adam Coady, Garrett Traub, Abhimanyu George Jain, Arielle N. Greenbaum, Meg Parker, and John Michael Allen. For the second edition, I was ably assisted by Shivani Sanghavi. My sincere thanks to all of them.

General References

An enormous literature is available today in the field of international criminal law. For purposes of simplicity and clarity, I have chosen to keep references in the text of this Nutshell to a minimum, concentrated in the further reading notes at the end of each chapter. For those wishing to delve deeper, the following may be helpful.

Textbooks . Quite a few law schools now teach courses on international criminal law, and the various textbooks in use offer a useful source of additional information. Naturally, I am strongly partial to Luban, OSullivan, Stewart and Jain, International and Transnational Criminal Law (3d ed. Aspen 2018). It offers perhaps the most detailed discussion of the various central issues in the field.

Other textbooks currently in use are Podgor, Clark and Dervan, International Criminal Law: Cases and Materials (4th ed., LexisNexis, 2016); McCormack, International Criminal Law: Cases and Materials (West Academic, 2015); Van Schaack and Slye, International Criminal Law and Its Enforcement: Cases and Materials (Foundation, 3rd ed., 2014); Paust, Scharf, Sadat, Grul & Zagaris, International Criminal Law: Cases and Materials (Carolina, 4th ed. 2013); and Cassese, Aquaviva, Fan & Whitley, International Criminal Law: Cases and Commentary (Oxford 2013).

Treatises. In addition, a significant number of treatises have been published in the field over the past few years, each with varying orientations and emphases. For further reading or research, I recommend the following: Kastner, ed., International Criminal Law in Context (Routledge 2018); deGuzman, Arcs of Global Justice: Essays in Honour of William Schabas (Oxford 2018); Boister, An Introduction to Transnational Criminal Law (2d ed. Oxford 2018); Oxford Handbook on International Criminal Law (Oxford 2017); Guilfoyle, International Criminal Law (Oxford 2016); van der Witt , Legal Responses to Transnational and International Crimes: Towards an Integrative Approach (Elgar 2017); Ambos, Treatise on International Criminal Law (Oxford 2016); Schabas, The Cambridge Companion to International Criminal Law (Cambridge 2016); Roger Clark, International Criminal Law (Oxford 2015); Cassese, Gaeta, Baig, Fan, Gosnell & Whiting, eds., Casseses International Criminal Law (Oxford, 3rd ed. 2013).