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Smith, Stephen E --- "International criminal law by Antonio Cassese and An Introduction to international criminal law and procedure by Robert Cryer" [2009] OtaLawRw 12; (2009) 12 Otago Law Review 211

Last Updated: 26 February 2012

^{International Criminal Law}

(by Antonio Cassese, Oxford University Press, 2d ed, 2008, 455 pp)

and

An Introduction to International Criminal Law and

^Procedure

(by Robert Cryer, Håkan Friman, Darryl Robinson, and Elizabeth

^{Wilmshurst, Cambridge University Press, 2007, 477 pp)}

Can an academic subject exist as a discrete discipline if there is no introductory textbook on the topic? This is a question I asked in 2002 as a law student. Earlier that year, the statute establishing the permanent International Criminal Court (ICC) had come into effect, and I was looking for a basic text that could serve as an introduction to the study of international criminal law (ICL). My international law professor referred me to a chapter in an international law textbook that was less than fifty pages long and appeared to lack any reference to any work resembling the introductory work I was looking for. My own library and internet searches turned up nothing more promising.

The situation in 2002 should not have been surprising. ICL was then (and still is) a relatively young branch of the law. Although the rudimentary outlines of ICL were sketched out by the International Military Tribunals and the International Law Commission in the decade following the Second World War, the Cold War ensured that ICL would remain underdeveloped for over 50 years. The founding of the ICC marked the end of a decade of rapid growth for ICL and perhaps the true beginning of it as a distinct discipline, as evidenced by its sudden appearance five years ago as an independent course in several British and American law schools. Now that I am a teacher and researcher in ICL, in order to make my occupational life sound exciting to students or laypeople, I sometimes tell them that ICL is the first new legal discipline of the new century.

Students are less excited when they learn that ICL is also a relatively difficult discipline for beginners to learn, precisely because of its newness. As I learned in 2002, although there have been a number of books – many of them little more than repackaged academic theses or dissertations – that have been published that present an in-depth study of a particular aspect of ICL, an accessible and reasonably comprehensive introductory textbook for the beginning student has been lacking. Now on the market are two competing introductory works: Antonio Cassese’s International Criminal Law, published by Oxford University Press, and the multi-authored An Introduction to International Criminal Law and Procedure, published by Cambridge University Press.

In 2003, Oxford University Press first attempted to fill the gap with Cassese’s first edition of International Criminal Law. As Cassese acknowledged in his introduction, this represented a ‘first attempt’

that he suggested was ‘destined to be replaced fairly soon by [a] more extensive and in-depth treatment’ of ICL. While Cassese’s first edition was of course an improvement upon the void that had come before, it nevertheless suffered from a number of flaws. First, the structure of the book was daunting for beginning students. Rather than beginning with an overview of what ICL is all about, the first edition began with a critique of the United Nations Security Council’s historical use of economic sanctions as the chosen means of attempting to prevent and punish the commission of atrocities. This material was useful background information, but it would have been more appropriate for a preface than the first chapter of an introductory textbook. It wasn’t until his second chapter that Cassese set out what he called the ‘fundamentals’ of ICL. When I began teaching ICL in 2005, I adopted Cassese’s textbook as a primary text. However, for my students, it was easy to become a little unnerved with a textbook when the instructor told them on day one that the class would be starting its readings in the second chapter.

Once the first edition got through its slow start, it then began to overcompensate and move too fast into discussions of complex substantive law. Following the introduction to ICL in chapter 2, rather than reviewing the basic elements of criminal offences that would be familiar to the student that has already studied domestic criminal law – the need for an actus reus and mens rea, for instance – Cassese immediately began a discussion of substantive ICL by presenting the modern definition of war crimes as set out by the International Criminal Tribunal for the former Yugoslavia. Faced with this abrupt change, more than one of my students returned to read the first chapter, convinced that I had told them to skip the section of the book that contained the missing link between the broad-stroked introductions and the minutiae of the Tadić case.

To Cassese and Oxford’s credit, both of these faults have been remedied in this second edition. The previous contents of the first chapter have been eliminated, and the book now begins strongly with two chapters on the fundamentals of ICL and a summary of the general principles of ICL, including the concepts of individual criminal responsibility and the legality of crimes. Next, before the introduction of the section on substantive law, Cassese has inserted a chapter that provides an excellent summary of the objective and subjective elements of crimes. In my view, a student who has just read the first three chapters of the second edition would be far better prepared to begin learning substantive ICL than a student who muddled their way through the original edition’s first and second chapters.

Apart from the changes already mentioned, the main difference between the first and second editions is that the new edition contains a considerable expansion of the material discussing commission of international crimes through participation in a joint criminal enterprise (JCE). In war crimes trials, JCE has been invoked as a means of convicting all of the participants in international crimes, regardless of the role

each played in its design or implementation. Through use of JCE, the political office holder who authorises torture, the military general who orders its use against a specific prisoner, the actual torturer, and the medical doctor who observes to ensure that death does not ensue may all be guilty of the crime of torture as principal parties, not merely as aiders or abetters. The doctrine was first used in the Second World War Military Tribunals, where it was described as encompassing those who participated in a ‘common plan or conspiracy’ to wage aggressive war. While the principles of command responsibility and the futility of the ‘just-following-orders’ defence are well-settled enough to lead to relatively non-controversial convictions of the actual torturer and those who authorised or commanded it, JCE becomes more controversial when it applied to the doctor or to those even further from the locus of action, such as the soldiers who stand guard at the door to the torture room or the soldier who delivers food or equipment to the other participants. JCE is a difficult area of law, and Cassese devotes enough space to the issue to examine it as thoroughly as could be hoped for in a text of this type.

In most other respects, Cassese’s second edition is strong throughout. The footnotes of the book are one of its outstanding features: they are consistently packed with expository detail that one would not normally expect to find in an introductory textbook. Footnotes of this type can be distracting and needlessly divertive in works that are usually read from beginning to end, but in a textbook that will typically be used as a reference, they are invaluable and almost create an advanced-level textbook embedded within the book itself. As an illustration of this feature, we may consider the 13-page section that discusses the question of superior orders as a defence. Within this section, the main text contains just over 2000 words, which are supplemented by footnotes consisting of nearly 4000 words. Frequently, the large word-count in the footnotes is due to extensive quotations from case law: when Cassese cites a judgment in a footnote, he usually includes a direct quotation of the source being cited. (This practice is generally not adopted in the Cambridge text.) Not only does this allow the reader to begin to assess whether the author has accurately interpreted the raw material of the law, in certain areas of ICL it can be of particular help to the monolingual English-speaker, since much of the case law from municipal European jurisdictions is not readily available in English translation. (Cassese has provided his own translations from material in Dutch, French, German, Italian, and Spanish.)

Nevertheless, the Cambridge text has strengths of its own that may render it preferable to some readers. Overall, the Cambridge text was a more pleasant and satisfying read, perhaps in part because of the ease with which a reader can become diverted by Cassese’s footnotes, as mentioned above. But ‘readability’ goes beyond this narrow issue: in general, the Cambridge text is clearer, less dense, and more user-friendly than Cassese’s. As one example, consider the opening sentence from the Cambridge text’s chapter on genocide:

Genocide, as General Assembly resolution 96(1) declared, ‘is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings’. [p. 165]

Contrast this clear and readily comprehensible statement with Cassese’s opening statement on genocide, which is considerably more technical and confusing and therefore less engaging:

Genocide is the intentional destruction, through one of five well-specified categories of conduct, of one of some groups as such (national, ethnical, racial, or religious) or of members of one of these groups as such. [p. 127, emphasis in original]

I also found the overall structure of the Cambridge text to be more intuitive and helpful to the beginning student. For instance, the Cambridge text begins its section on substantive ICL with chapters on genocide, crimes against humanity, and war crimes, whereas Cassese presents these three topics in reverse order. While it is true that Cassese’s approach correctly reflects the chronological development of the three crimes, as a teacher I have found that students typically find it easier to understand war crimes after they have gained an understanding of genocide and crimes against humanity. Ordering issues such as this are of little consequence when a text is used as a reference; when it is read from beginning to end or used to assist in structuring the presentation of lectures, however, they can have some significance to the learner.

A significant achievement of the Cambridge text is its overall consistency of tone, style, and clarity. When textbooks are co-written by three or more authors, it is often obvious to the reader which chapters or sections were written by different authors. In this case, I was unable to discern where transitions between authors occurred. Whether this is the result of a truly collaborative effort between the four authors or some highly skilled editing is unclear, but the result is the same: the book is internally consistent and seamless in its integration.

In summary, I would without hesitation recommend both books, but I would prefer one book in favour of the other depending on the intended use. For the beginning student or for the casual reader, the Cambridge text is superior. But as an everyday reference book for the researcher or teacher, it is Cassese’s that will sit on my desk.

There is perhaps one final factor that will determine the relative success of these two competing works: price. While Cassese’s second edition retails for £34.99, the Cambridge text’s list price is £225.00. If money is a primary concern, it is obvious that the Cambridge text is not six or seven times better than Cassese’s. In economic times such as these, it may be this divergence rather than the actual merits of the books that determines their fortunes.

Stephen E. Smith, Faculty of Law, University of Otago.