Criminal Law Forum (2005) 16: 361372

DOI 10.1007/s10609-005-4728-3

Springer 2006

Book Review

CARL-FRIEDRICH STUCKENBERG*

A CURE FOR CONCURSUS DELICTORUM IN

INTERNATIONAL CRIMINAL LAW?

Reviewing:
Olaoluwa Olusanya, Double Jeopardy Without Parameters. Recharacterisation in International Criminal Law, AntwerpOxford:
Intersentia, 2004, 278 pp.
The problem of concursus delictorum seems to be an incurable birth
defect of crimes under international law. Since the beginnings at
Nuremberg, almost every international criminal trial involves multiple charges and multiple convictions based on the same set of facts.
The reason is obvious: war crimes, crimes against humanity, and
genocide have more denitional elements in common than not, and
this family resemblance is barely a surprise in light of their genesis.
Concursus delictorum has two legal dimensions. The substantive
dimension concerns sentencing: Should a conviction be entered for all
nominally applicable oenses, and if so, should the total amount of
punishment be increased, and how? The procedural dimension relates to
pleading and double jeopardy: Are multiple charges admissible? How
does concursus delictorum aect the scope of res iudicata: Are repeated
trials possible for the same facts by way of dierent legal qualications?
Finally, in both dimensions, an apparently trivial question has to be
solved which turns out to be a philosophical puzzle of the rst order1 in
* Senior Research Fellow, Institute for Criminal Law, University of Bonn, Germany; rst state exam (1990), LL.M. (Harvard, 1992), second state exam (1997),
Dr. iur. (Bonn, 1997). My thanks to Professor Claus Kre (University of Cologne)
for helpful comments on an earlier draft.
1
See generally Donald Davidson, The Individuation of Events, in ESSAYS ON ACTIONS
AND EVENTS 163 ss. (2nd ed. 2001); MICHAEL MOORE, ACT AND CRIME (1993); also
ROBIN VALLACHER & DANIEL WEGNER, A THEORY OF ACTION IDENTIFICATION (1985).

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CARL-FRIEDRICH STUCKENBERG

legal guise: when are facts the same and when are oenses dierent?
How to deal with multiplicity of oenses is a question that has plagued
national criminal laws for 2,000 years,2 and a plethora of answers, ranging
from confused neglect via straightforward pragmatism to arcane complexity, is available. In international criminal law, tribunals have
repeatedly addressed the problem and the scholarly literature is growing,
yet without a generally accepted and satisfactory solution being in sight.
So far, the aforementioned questions also seem less pressing in international than in national criminal law. There is no clear evidence that
multiple convictions for the same facts have led to stier sentences, and
repeated trials before international tribunals for the same facts have not
been a concern. However, there is still a third dimension. The incidence of
concursus delictorum and the techniques for its resolution are indicators
for the internal consistency, sophistication and over-all rationality of a
given criminal law. This is not a mere aesthetic or theoretical matter, since
lack of internal rationality may cause annoyance, judicial error, and
injustice.
The book under review boldly sets out to resolve all these actual or
potential concerns and oers two radical proposals aimed at completely eliminating the occurrence of concursus delictorum in international criminal law.
The work is divided into ve chapters. Chapter 1 is an introduction to the problem eld that the author will henceforth call
re-characterisation (dened as multiple characterisation of the same
facts under dierent headings, p. 5),3 with an overview of the relevant literature and the structure of the book.
Chapter 2 traces the history of the emergence of re-characterisation in international criminal law. After brief remarks on the history
of double jeopardy in general, the author analyzes the factors that
shaped the concepts of war crimes and crimes against humanity in the
Nuremberg trials (pp. 3366). Both concepts are employed to
penalize violations of humanitarian law originating in the Hague
Regulations of 1907 and should, in the authors view, therefore be
regarded as identical (p. 50). The purported dierence between them,
i.e., protection of diering groups of persons, is rejected in light of the
2

For a historical survey see WILHELM HoPFNER, 1 EINHEIT UND MEHRHEIT DER
VERBRECHEN 7100 (1901).
3
In hindsight, this terminological choice is somewhat unfortunate because it could
be confused with the procedural device now provided for in Regulation 55
(Authority of the Court to modify the legal characterisation of facts), Regulations
of the Court (ICC), Adopted on 26 May 2004, ICC-BD/01-01-04.

a cure for concursus delictorum?

363

Nuremberg jurisprudence which often treats the two charges as one

(p. 50). The author identies three4 main causes for the problematic
contents of these crimes which he calls circumvention of black letter
law (pp. 35 ss.), inclusion of derivative concepts (pp. 44 ss.) and
over-reliance on natural law (pp. 62 ss.) both categories of crimes
are regarded as ex post facto laws and hence illegitimate (pp. 35 ss.,
43, 48, 244245). In sum, the problematic inter-relation of war crimes, crimes against humanity, and later the crime of genocide, too, is
depicted as the consequence of some sort of legal original sin: the
Allied Powers chose the law of vengeance over the rule of law in their
eorts to make Nazi war criminals accountable for their crimes
which embodied a type of justice that seduces us with easy answers
and simple formulas (p. 71, also pp. 171 ss.) but apparently fails in
the discipline of draftsmanship. Between 19451949, WWII tribunals
unfairly prosecuted individuals for two or more categories of crimes
... based on the same act (p. 75) because of an irrational fear ... that
defendants would be acquitted under what in their view constituted
existing laws (p. 244).
The third chapter examines the occurrence and treatment of
re-characterisation mainly in the jurisprudence of the ICTY and
ICTR and nds that history repeats itself (p. 76), in particular,
that crimes against humanity, grave breaches and other violations
of the laws and customs of war are all derived from the 1907 Hague
Conventions (pp. 78 ss.). The numerous attempts of the ad hoc
tribunals to devise rules for multiple charges and multiple convictions and to dierentiate the categories of crimes by isolating
unique elements in each (war nexus, widespread and systematic
attack, qualication of victims, protected interests etc.), are thoroughly criticized (pp. 104 ss., 119 ss.) and disqualied as arbitrary
inference and selective abstraction (p. 174) which repackage the
illegal act of re-characterisation in a legalistic way (p. 249). Approaches using national criminal law concepts like apparent, ideal
and real concurrence or the Blockberger test are dismissed as failing
to take proper account of the dierences between national and
international crimes (pp. 128130, 174175, 202203, 249). A closer
look at the Rome Statute reveals that the problem of re-characterisation is destined to haunt the future ICC jurisprudence as well

The national laws of the Allied Powers are counted as a fourth factor (p. 71) but
the point is not elaborated (compare pp. 3233).

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CARL-FRIEDRICH STUCKENBERG

(pp. 141147). National provisions incorporating international

crimes are found to fare no better (pp. 147167).
The practice of charging and convicting the accused cumulatively
in relation to the same set of facts has as yet repeatedly been branded
as unfair (pp. 25, 50, 75) without further explanation. The author
now devotes a brief section (pp. 168171) to the potential harmful
consequences of re-characterisation which are said to consist in
potentially higher, even duplicative, penalties, unfair social stigmatization and splitting of charges thereby losing sight of the fact that
there has been only one transaction: the imposition of several sentences for one and the same conduct is unjust (p. 171).
In Chapter 4, two remedies for re-characterisation are presented. The rst one (termed solution) establishes a system of
lesser included oences and alternative verdicts on the basis of
article 38(1) of the Statute of the International Court of Justice
(pp. 178221). The provisions list of international law sources is
modied to create a hierarchical ranking of international crimes in
terms of gravity. The resulting hierarchy contains four levels: ius
cogenscustomary lawtreatiesprotocols. Ius cogens occupies the
highest rank as a higher law of over-riding importance for the
international community (p. 181). Customary international law has
precedence over international treaties because the latter are deemed
defective in the area of human rights protection while customary
law is seen as stabler and more eective in limiting the power of
States to undermine or circumvent human rights norms (pp. 182
185). Protocols, meaning agreements less formal than treaties or
conventions, are located at the lowest level because they are considered the least important source in the hierarchy of international
law sources (p. 185).
Obviously, this approach can only be fruitful if international
crimes are distributed evenly on the steps of this ladder, and this is
what the author now does: The prohibition of genocide, as ius cogens,
occupies rank 1 (pp. 187189). The prohibition of grave breaches of
the obligations contained in the 1949 Geneva Conventions is
declaratory of customary law, and comes in second. Crimes against
humanity are ranked third because they fail to meet the minimum
requirement of customary international law specically uniform
and constant usage practiced by countries (p. 191), since a review of
relevant denitions given for crimes against humanity nds no consistency among them (pp. 191198). Violations of the laws and customs of war are regarded as subsidiary to all other international

a cure for concursus delictorum?

365

crimes, classied as international protocol norms and ranked lowest

(pp. 198200).
This ranking is then tested on the case law and national legislation
presented before and on Article 78 ICC Statute (pp. 200221).
A higher-ranking oense is considered as lex specialis (pp. 204, 205
and passim) which precludes the application of any lower-ranking
oenses, hereby eradicating concursus delictorum in all possible
combinations of international crimes.
An additional way (called recommendation) to eliminate
re-characterisation employs the fault element of international crimes
(pp. 221239). The author dierentiates between intent as the
what of conduct and motive as the why of conduct, and nds
that in national criminal laws intent has a higher status than motive
and that this view is shared by international tribunals (pp. 221223).
Intent is examined for its aptitude to delineate international crimes
and then dismissed. Since international crimes are composed of a
chapeau and a list of oenses, reliance on the intent requirement,
would negate the chapeau element (p. 224). The intent necessary, e.g.,
for murder, torture or rape as such is identical whether the deed
constitutes a war crime or a crime against humanity (pp. 226231).
Instead, motive is deemed to be able to install conceptual fences
between international crimes thereby eliminating the possibility of recharacterisation (pp. 231232) and should therefore be ranked above
intent (p. 239). Rape, deportation, ethnic cleansing, and apartheid are
given as examples. For example, the motives for rape as a war crime
are to demoralize the enemy, dominate, humiliate and control
behaviour, disable the enemy by destroying family bonds; the motive
for rape as a crime against humanity is to achieve a form of ethnic
cleansing; the motive for rape as a form of genocide is to prevent
births in the victim group. International crimes are thus conceptualized as motive crimes. The reliance on motives is recognized as
problematic in national criminal law, but remains useful in international criminal law because of the unique nature of international
crimes (pp. 251252).
Chapter 5 contains a conclusion that sums up the results and
occasionally deepens and expands the underlying argument (pp. 241
255). Notably, the ideas are now clearly articulated that since recharacterisation originates from the overlap between international
human rights norms, solutions emanating from the eld of international human rights law are sucient and that the full transplantation of criminal law rules to the eld of international criminal law is

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CARL-FRIEDRICH STUCKENBERG

unwise though certain aspects like motive may prove useful (p. 253).
The nal outlook supposes that the best option is to rationalize
international crimes by abolishing the current genocide/crimes
against humanity distinction and grave breaches/other violations of
war distinction and have only two crimes (genocide and war crimes)
instead (p. 254).
Undeniably, this is a thought-provoking book which gets to the
root of the problem. It also provokes a host of questions and
comments, only a few of which can be discussed here. Hence, I will
focus on the two proposals to eliminate re-characterization altogether.
One of the books merits is to openly address many fundamental
methodological issues, thereby making often tacit preconceptions
explicit and subject to debate. The authors most fundamental
methodological proposition is what he calls the purist approach to
re-characterisation, meaning that it utilizes international human
rights law rules to resolve what is essentially an international human
rights law dilemma, which is said to represent a departure from the
current methods which try to press international human rights norms
into the strait-jacket of criminal law (p. 239), also expressed in the
two ideas on p. 253 cited before. Here I respectfully but categorically
disagree. The alleged contrast between international human rights
law and criminal law is either an overstatement or reects a misconception. It is unquestionably correct that national criminal law
concepts must not be imposed on international crimes without
translation. Nonetheless, international criminal law is a species of
criminal law and thus shares the structural features and problems
that are the subject of criminal law theory everywhere. The formal
characteristics of criminal oenses, their ingredients like actus reus,
mens rea, the mechanics of defenses like justication or excuse, and
also the mechanics of concursus delictorum, are wholly independent of
the contents, whether the aim is to punish war crimes, environmental
pollution or petty theft. Hence it is no contradiction that a legal rule
may formally belong to criminal law and thematically be part of
human rights or humanitarian law. Of course, form follows function
here too: Substance and purpose of a prohibition inuence its
structural properties and behaviour. But history and comparative law
indicate that the number of the major structural problems and
solutions in criminal law tends to be nite although they may come in
manifold dresses. It is therefore unlikely that international criminal
law poses structural problems entirely outside the logical universe of

a cure for concursus delictorum?

367

national criminal law theories or requires solutions unknown to the

centuries-old toolboxes of national criminal laws, whose common
general principles provide a subsidiary source of international
criminal law anyway.
The gist of the authors analysis can nevertheless be sustained:
Although re-characterization in international criminal law is structurally a criminal law problem, its precise contours result from the
peculiar development of international humanitarian and human
rights law. The problem can only be solved with criminal law tools;
international humanitarian and human rights law can and must inform the way in which those tools are applied. Neither aspect must be
neglected.
Accordingly, more attention to the criminal law aspect, in particular the distinct types of concursus situations as identied in many
national laws, would have beneted the authors argument by
enhancing the clarity and power of his analysis. For example, in an
area as complex as concursus delictorum, sweeping generalizations
like the imposition of several sentences for one and the same conduct
is unjust (p. 171) are infelicitous because they tend to be either
incorrect there is a category of situations (i.e. ideal concurrence)
where multiple (concurrent) sentences may be entirely appropriate, as
the author himself seems to recognize in the examples given on pp. 21
and 129 or unhelpful for lack of adequate dierentiation here, the
fairness of multiple charges or sentences is contingent upon the details of the factual situation and the operation of the applicable
normative scheme as a whole.
In light of the above, it is no surprise that the two remedies proposed in the book can be easily recast in terms of traditional criminal
law theory:
There are two ways to deal with concursus delictorum within the
substantive dimension of the problem: The rst is a special part
approach and alters the oense denitions proper. The second or
general part approach accepts the oense denitions as immutable
and seeks to devise rules of the second order which determine
applicability and coordination of the oenses.
The rst way seeks to eliminate or reduce the occurrence of
multiple characterizations by shaping the oense denitions in such a
way that they overlap never or seldom. In national criminal law, the
number of oenses is simply too great to preclude the occurrence of
concursus delictorum totally; all that can be achieved is to reduce
multiplicity by good draftsmanship, deletion of duplicates and

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CARL-FRIEDRICH STUCKENBERG

keeping a watchful eye on legislative proliferation. In international

criminal law, this might be easier achieved, given the small number of
oenses. The authors recommendation seems to do exactly this: By
way of interpretation, the crimes are separated to avoid overlap. The
next question is whether this remedy really works: How are those
motives ascertained? Are they subjective mental elements in the
head of the defendant or are they objectively ascribed? Are international crimes always accompanied by one of the pertinent motives?5 Assuming arguendo a positive answer to the last question,
then, if forward-looking motives6 are the same as further or ulterior
intentions/purposes7, and if these second-order intentions are used to
describe an action (intentio mea imponit nomen operi meo), murder to
demoralize the enemy could arguably be a dierent action from
murder to destroy an ethnic group. However, we should also expect
to see what action theory calls the by-relation8 and the accordion
eect9: Actions can often be described as intentional at multiple
levels of an action tree10, so that it should be possible to pile several
intentions/purposes/motives one on top of the other. Action trees are
also known to split into several branches. Bearing this in mind, why
should it be inconceivable that several motives exist cumulatively or
alternatively11 which in turn creates overlap? Could not murder be
committed to destroy members of an ethnic group (genocide, cf.

Is it unimaginable that a perpetrator acted for purely personal motives, as

discussed in Prosecutor v. Tadic (Case no. IT-94-1-A), Judgment, 15 July 1999, paras.
238270?
6
See G.E.M. ANSCOMBE, INTENTION 12 ss. (1957); ANTHONY KENNY, ACTION,
EMOTION AND WILL 58 ss. (1963). Backward-looking motives (he did it because of
his wish of /ing) can usually be re-described as forward-looking motives (he did it
in order to /), see KENNY, IBID., at 60.
7
GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART, 21, p. 48 (2nd ed.
1961); SALMOND ON JURISPRUDENCE, 90 (12th ed. by P.J. Fitzgerald, 1966).
8
Alvin I. Goldman, The Individuation of Action, 68 JOURNAL OF PHILOSOPHY 761,
763 (1971); id., A THEORY OF HUMAN ACTION 5 (1970).
9
Joel Feinberg, Action and Responsibility, in DOING AND DESERVING 134 (1970);
John L. Austin, A Plea for Excuses, 57 PROCEEDINGS OF THE ARISTOTELIAN SOCIETY
(New Series) 1, 4 (1956).
10
See supra note 8.
11
See generally JEREMY BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION, ch.
VIII IX (new ed. 1823).

a cure for concursus delictorum?

369

p. 231) and to convince the other inhabitants of a place to leave

(crime against humanity) in order to further demoralize the enemy
(war crime)? Whether dierent descriptions correspond to dierent
actions is philosophical battleground12 and need not be resolved here.
It suces to note that the books motive approach stands and falls by
the possibility of simultaneous cumulative or alternative motives in
defendants mind. If multiple motives are possible, the problem of
concursus resurfaces anew.13
A further question is if it is well-advised to rely on motive at all.
Whether motive plays a role in criminal law ultimately depends on
ones idea what criminal law is all about. For instance, if criminal law
is conceived as a method of social engineering to control dangerous
individuals (punitur ne peccetur), motives serve as important symptoms of potentially dangerous attitudes; from a retributive perspective, however, mental states may be less relevant than actual harm
done (punitur quia peccatum est), and reliance on motive could be
seen as punishing sinful thoughts rather than harmful deeds, whereas
a moralist conception of criminal law would view deviant motives as
the main object of blame. An in-depth discussion of the philosophical
foundations of international criminal law is badly needed but would
require an entire book.14 Therefore, the question is narrowed here to
the role of motive in the current framework of international criminal
law. To date, only the crimes of genocide and persecution have an
accepted special intent/further intention/motive element. With these
12

One so-called coarse-grained view holds that one and the same action can
come under several descriptions, see ANSCOMBE, supra note 6, 23 ss., 26; Donald
Davidson, Agency, in ESSAYS ON ACTIONS AND EVENTS 5859 (2nd ed. 2001) (confusion between a feature of the description of an event and a feature of the event
itself.), whereas the opposite ne-grained view counts as many actions as there are
descriptions. See generally IRVING THALBERG, PERCEPTION, EMOTION AND ACTION 85
ss. (1977); KARL PFEIFER, ACTIONS AND OTHER EVENTS. THE UNIFIER-MULTIPLIER
CONTROVERSY (1989).
13
A concursus of motives could then be resolved in a similar manner as proposed
in the books solution, i.e. by establishing a hierarchy of gravity, e.g., genocidal or
discriminatory motives could take priority over war crime-motives. This could
probably be reconciled with the authors approach in Olusanya, Do Crimes Against
Humanity Deserve a Higher Sentence than War Crimes?, 4 INTL CRIM. L.REV. 431,
442 et seq., 472 (2004).
14
See e.g. KATRIN GIERHAKE, BEGRuNDUNG DES VoLKERSTRAFRECHTS AUF DER
GRUNDLAGE DER KANTISCHEN RECHTSLEHRE (2005); Michael Kohler, Zum Begri
des Volkerstrafrechts, 11 JAHRBUCH FuR RECHT UND ETHIK 435467 (2003); Ralph
Henham, The Philosophical Foundations of International Sentencing, 1 J. INTL CRIM.
JUST. 6485 (2003).

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CARL-FRIEDRICH STUCKENBERG

exceptions, motives are relevant only at the sentencing stage. Promoting motive to a denitional mental element which has to be
proven at trial of war crimes and crimes against humanity is barely
feasible de lege lata and unrealistic de lege ferenda. If, on the other
hand, motive is not an element of the mens rea of war crimes and
crimes against humanity other than persecution and thus is legally
irrelevant to build a case as with many national crimes15 , one
wonders why it should be relevant in a concursus situation? The only
remaining answer seems to be that motive is the criterion of choice
simply because it works, i.e., hinders concursus delictorum which it
probably does not for the reasons set out above.
Lastly, the rejection of intent as a criterion seems to suppose that
the intent requirement does not cover the contextual elements in the
chapeau, e.g., of article 18 of the 1996 Draft Code (p. 224), although
case law and probably the prevailing scholarly opinion hold the
opposite,16 as well as article 7(1) of the Rome Statute which requires
knowledge of the attack.
The second way to deal with concursus delictorum proceeds on the
premise that several oenses are nominally applicable and then tries
to sort out which ones are denitely applicable and which consequences remaining collisions shall have. The logical possibilities for
these situations and solutions are limited in any legal order and it
cannot be otherwise in international criminal law.17 Which rule of

15

Andrew Ashworth, Testing Fidelity to Legal Values, in CRIMINAL LAW THEORY:

DOCTRINES OF THE GENERAL PART 299, 326 n. 113 (Stephen Shute & Andrew P.
Simester eds., 2002): motive is irrelevant because it is not an element of most offences.
16
SEE ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 8182 (2003); KAI
AMBOS, DER ALLGEMEINE TEIL DES VoLKERSTRAFRECHTS 774778 (2002), GERHARD
WERLE, VoLKERSTRAFRECHT 300301 (2003); Roger S. Clark, The Mental Element in
International Criminal Law, 12 CRIM. L.F. 291, 327329 (2001).
17
I have tried to sketch an analytical framework for concurrence of oenses in
Carl-Friedrich Stuckenberg, Multiplicity of Oences: Concursus Delictorum, in
INTERNATIONAL AND NATIONAL PROSECUTION OF CRIMES UNDER INTERNATIONAL
LAW 559, 563569 (Horst Fischer, Claus Kre & Sascha Rolf Luder eds., 2001).
International case law leaves much to be desired here. The promising beginnings, i.e.,
the thorough analysis in Prosecutor v. Kupreskic et al. (Case no. IT-95-16-T),
Judgment, 14 January 2000, paras. 637748, seem to have been foiled for the foreseeable future by the disappointingly supercial and uncomprehending reasoning in
Prosecutor v. Delalic et al. (Celebici) (Case no. IT-96-21-A), Judgment, 20 February 2001, paras. 400413.

a cure for concursus delictorum?

371

concurrence is appropriate depends not only on the scheme adopted

but mainly on the interpretation of the respective oenses. The
solution proposed by the author belongs to the class of rules known
as apparent or false concurrence18 and more specically to the
category of subsidiarity,19 which simply consists in a meta-rule
providing that a residual oense is applicable only if another superordinate oense is not (lex primaria derogat legi subsidiariae). This is
a purebred criminal law concept well known in a number of civil law
jurisdictions.20 But terminology is less important than the question
whether the alleged relationship of subsidiarity exists, and this only
international humanitarian law can answer. The idea of subsidiarity
is nothing else than the idea of a hierarchy of application usually
based, as in the book, on some scale of gravity, importance etc. While
the proposed hierarchy of oenses appears plausible for criminal law
purposes, the crucial issue is where this scale legally comes from. The
connection between article 38(1) of the Statute of the International
Court of Justice and the proposed four-level hierarchy seems loose
and dispensable since article 38 establishes an order but not a hierarchy21 which the author would have turned on its head anyway by
stating that customary law is of a higher value than treaty law
(p. 182). The legal origin, nature and status of the alleged hierarchy of
sources in general are little clear apart from ius cogens. The matching
of international crimes with the hierarchy levels poses some questions
as well: To deny the customary law status of crimes against humanity
altogether seems to throw out the baby with the bath water. The fact
that in some borderline cases the international and customary
character ... has not been suciently established22 tells nothing
18

Also: concours apparent dinfractions; concorso apparente di norme; concurso

aparente de leyes; unechte Konkurrenz/Gesetzeskonkurrenz.
19
Also: subsidiariedad; sussidiarieta`; Subsidiaritat. The cognate concept of consumption (consuncion; consunzione; Konsumtion; the punishment meted out for the
more severe oense is deemed sucient: lex consumens derogat legi consumptae) is
not always easily distinguished from substantive subsidiarity. Here, the proposed
formal hierarchy of oenses corresponds to formal subsidiarity.
20
See Stuckenberg, supra note 17, p. 594 n. 150.
21
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5 (6th ed. 2003).
Some scholars think that article 38 reects a lex specialis-ranking of the sources, see
e.g. Wol Heintschel von Heinegg, in VoLKERRECHT 20 (Knut Ipsen, ed., 5th ed.
2004), which is merely presumptive, and may be rebutted.
22
Christian Tomuschat, International Criminal Prosecution: The Precedent of
Nuremberg Conrmed, 5 CRIM.L.F. 242 (1994), cited approvingly several times in the
book, e.g., p. 197.

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CARL-FRIEDRICH STUCKENBERG

about the core of the concept.23 Instead, it would have been necessary
to show that none of the many alternatives of this class of oenses
fullls the criteria of customary law. Concerning violations of the
laws and customs of war, one might wonder why they are classied as
protocol norms without even discussing the customary law status of
those customs. Finally, it is not clear to me how this hierarchy could
be applied to the Rome Statute (pp. 220221), notably because all
oenses contained therein at least are treaty law on an equal footing
and because article 78(3) of the Rome Statute explicitly, if rudimentarily, provides for re-characterisation and thus presupposes
that no such hierarchy exists among the Statutes oenses.
These questions and remarks cannot hide the fact that I am
whole-heartedly sympathetic to the authors project to mold international criminal law rules into a system (p. 178). One need not
always agree with every detail of the authors analyses and proposals to acknowledge that the book makes out a powerful case for
systematical organization and coherence. The author touches on
one of the sorest points of contemporary international criminal
justice and demonstrates excellent judgment by the choice of subsidiarity as principal remedy. When two oenses do not stand in the
logical relationship of inclusion (lex generalislex specialis stricto
sensu) so that only one is applicable for logical reasons, the
occurrence of concursus delictorum in situations of norm interference could be largely reduced if a hierarchical scheme of norm
application were accepted, unless it is felt that multiple convictions
are needed to adequately describe what the accused did. This requires courageous re-interpretation of international crimes in light
of their history, and here, the author has led the way. Although I
am skeptical that his solution is the nal word on the vexed issue of
concursus delictorum in international criminal law, his innovative
proposals doubtlessly enliven and enrich the discussion and supply a
much-needed broader perspective.

23

See WERLE, supra note 16, p. 623.