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ISS 315 > Exam 3 > Flashcards

Exam 3 Flashcards

1
Q

What international courts, tribunals, and commissions address war crimes and crimes against humanity?

A

Nuremberg Tribunal, Tokyo Tribunal, ICTY (Yugoslavia), ICTR (Rwanda), International Criminal Court (ICC), Special Court for Sierre Leone

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2
Q

Which international courts, tribunals, and commissions are temporary?

A

1) Nuremberg Tribunal (IMT)
2) Tokyo Tribunal
3) ICTY
4) ICTR
5) Truth and Reconcile Commission (TCR)

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3
Q

Which international courts, tribunals, and commissions are permanent?

A

1) International Criminal Court of Justice (ICJ)
2) European Court of Human Rights
3) ICC

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4
Q

How was the International Court of Justice established?

A

Primary judicial organ of the UN established in 1945 in The Hague, Netherlands

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5
Q

How was the European Court of Human Rights established?

A

Established under the European Convention on Human Rights of 1950 in Strasbourg, France

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6
Q

How was the International Military Tribunal (IMT) or The Nuremberg Trial established?

A

established from 1945-1946 in Nuremberg, Germany

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7
Q

How was the Tokyo Tribunals established?

A

established from 1946-1948 in Tokyo, Japan

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8
Q

How was the ICTY established?

A

established in 1993 by the UN Security Council

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9
Q

How was the ICTR established?

A

established in 1994 by the Security Council Resolution 955 in Arusha, Tanzania

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10
Q

How was the ICC established?

A

established by a multi-lateral treaty (Rome Treaty or Rome Statute) finalized in 1998

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11
Q

How was the Special Court of Sierra Leone established?

A

established in 2002 by an agreement between the UN and government of Sierra Leone in Freetown, Sierra Leone

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12
Q

How was the Cambodia Trial established?

A

established in 2003 by an agreement between the UN and Cambodia creating a joint court (international tribunal)

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13
Q

How was the Truth and Reconcile Commission (TRC) established?

A

established in 1995 in Cape Town, South Africa

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14
Q

Which international courts and tribunals have jurisdiction over states?

A

1) International Court of Justice (ICJ)

2) ICC

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15
Q

Which international courts and tribunals have jurisdiction over individuals?

A

1) European Court of Human Rights
2) Nuremberg Tribunal
3) Tokyo Tribunals
4) ICTY
5) ICTR
6) Special Court of Sierra Leone
7) Cambodia Tribunal

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16
Q

Why do some international courts and tribunals use primarily an indirect approach?

A

Their decisions are more recommendations

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17
Q

What is the International Court of Justice?

A

primary judicial organ of the UN

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18
Q

What are the functions of the International Court of Justice?

A

1) settle legal disputes submitted by member states

2) give advisory opinions on legal questions by the UN

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19
Q

Does the International Court of Justice deal with criminal cases?

A

No

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20
Q

What are the criticisms of the International Court of Justice?

A

1) “compulsory” jurisdiction is limited
2) organizations and individuals have no access
3) no full separation of powers (veto)

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21
Q

How many judges does the European Court of Human Rights have?

A

the number of member states (47 currently)

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22
Q

What kinds of cases does the European Court of Human Rights handle?

A

complaints from individuals about human rights violations perpetrated against them by their governments

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23
Q

What are some examples of recent decisions made by the European Court of Human Rights?

A

1) Russia responsible for murder of 4 Chechens (2007)

2) Soering vs the UK (1989): extradition to US violated right against inhumane and degrading treatment

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24
Q

What is the International Military Tribunal? (Nuremberg Tribunal)

A

trial of 24 surviving formal leaders of Hitler’s government

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25
Q

Which cases were brought before the International Military Tribunal?

A

24 former leaders of Hitler’s government charged with crimes against peace, war crimes, and crimes against humanity

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26
Q

How was the International Military Tribunal composed?

A

4 judges, one from each of the Allied powers

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27
Q

What was the defense of the International Military Tribunal?

A

lawful actions or following orders

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28
Q

What was the outcome of the International Military Tribunal?

A

12 sentenced to death, 7 imprisoned, 3 acquitted

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29
Q

Why was the International Military Tribunal relevant for international law?

A

Nuremberg Principles were created:

1) individuals responsible
2) superior orders no help
3) official position no help
4) complicity is criminal
5) definition of international crimes

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30
Q

What are criticisms of the International Military Tribunal?

A

1) no appeal
2) victor’s justice (Allied crimes forgotten)
3) some key people not put on trial
4) indictments created ex post facto

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31
Q

Were any additional trials of German citizens conducted by the Americans?

A

yes there were many post-IMT trials

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32
Q

What is the International Military Tribunal for the Far East? (Tokyo Tribunal)

A

international court formed to prosecute the leaders of the Japanese military and civilian government for crimes against the Allies

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33
Q

Which cases were brought before the Tokyo Tribunal?

A

25 Japanese military and political leaders on trial for crimes against peace

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34
Q

How was the Tokyo Tribunal composed?

A

11 judges, 1 for each Allied nation

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35
Q

What was the outcome of the Tokyo Tribunal?

A

7 death sentences, 16 life imprisonments, 2 lighter sentences and 5700 Japanese nationals charged with war crimes (51% imprisonment)

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36
Q

What are criticisms of the Tokyo Tribunal?

A

1) similar to Nuremberg
2) victor’s justice
3) American bias

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37
Q

What is the International Criminal Tribunal for the Former Yugoslavia (ICTY)?

A

international criminal tribunal to find justice for grave breaches of the 1949 Geneva Conventions in The Hague, Netherlands

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38
Q

What is the ICTY’s jurisdiction?

A

1) grave breaches of the 1949 Geneva Conventions
2) violations of the laws or customs of war
3) violations of genocide
4) violations of crimes against humanity

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39
Q

How is the ICTY organized?

A

1) Chambers (3 trial chambers + 1 Appeals)
2) Registry
3) Office of the Prosecutor

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40
Q

Why is the ICTY relevant for international law?

A

1) enforce the existing body of law
2) punishment of sexual violence in wartime
3) specified crucial elements of the crime of genocide
4) specified enslavement and persecution as parts of crimes against humanity
5) command responsibility
6) victims and witness program
7) established legal aid system

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41
Q

What are criticisms of the ICTY?

A

1) high cost
2) legitimacy (UN Security Council)
3) 5 indictees still at large
4) secret indictments create uncertainty
5) plea bargaining
6) citizens of NATO countries not prosecuted
7) help reconciliation and length of trials

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42
Q

What is the International Criminal Tribunal for Rwanda (ICTR)?

A

international criminal tribunal established in Arusha, Tanzania to seek justice for the 1994 Rwandan Genocide

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43
Q

What is the jurisdiction of the ICTR?

A

1) genocide
2) crimes against humanity
3) violations of Article 3 of Geneva Conventions committed in Rwanda in 1994

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44
Q

How is the ICTR organized?

A

1) Chambers
2) the Office of the Prosecutor
3) the Registry

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45
Q

Why is the ICTR relevant for international law?

A

1) the guilty plea for the crime of genocide
2) head of government convicted for genocide
3) interpreted the definition of genocide
4) rape and sexual violence may constitute genocide
5) role of the media examined in the context of international criminal justice

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46
Q

What are criticisms of the ICTR?

A

1) similar to ICTY criticisms
2) slow trials, key defendants still at large, only 14 cases in over a decade
3) does it enable reconciliation?

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47
Q

What is the ICC?

A

permanent court to enforce international criminal law

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48
Q

What is the ICC’s jurisdiction?

A

1) crimes against humanity
2) genocide
3) war crimes
4) crime of aggression (not yet)

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49
Q

What does the “complementarity principle” imply?

A

ICC acts only when a country is “unwilling” or “unable” to take up the case

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50
Q

How is the ICC organized?

A

1) Presidency
2) Chambers
3) Office of the Prosecutor
4) Registry

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51
Q

How extensive are the procedural rights provided to the defendants?

A

extensive

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52
Q

What is the Special Court for Sierra Leone?

A

international court to adjudicate crimes against humanity taking place in Sierra Leone since 1996

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53
Q

What is the jurisdiction for the Special Court for Sierra Leone?

A

1) crimes against humanity
2) war crimes
3) violations of domestic laws of Sierra Leone

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54
Q

Who are the judges for the Special Court for Sierra Leone?

A

1) Trial: 4 UN judges and 2 Sierra Leone judges

2) Appeals: 3 UN judges and 2 Sierra Leone judges

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55
Q

Why is the Special Court for Sierra Leone relevant for international law?

A

ruled on charges related to child soldiers

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56
Q

What is the Cambodia Tribunal?

A

joint court between the UN and Cambodia to prosecute those responsible for the deaths under the 1970s Khmer Rouge

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57
Q

Who are the judges of the Cambodia Tribunal?

A

Trial: 3 Cambodian and 2 UN

Supreme Court Chamber: 4 Cambodian and 3 UN

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58
Q

What procedural rules govern the work of the Cambodia Tribunal?

A

procedural rules based on the Cambodian rules

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59
Q

Does the Cambodia Tribunal have the right to impose the death penalty?

A

yes

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60
Q

What are Gacaca courts?

A

large scale Rwandan courts to process the tens of thousands of cases of non-leaders accused of participating in the 1994 genocide

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61
Q

How were the Gacaca courts established?

A

passed by Rwanda National Assembly in 2000

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62
Q

Who are the judges in the Gacaca courts?

A

a) 250,000 Rwandans elected

b) given basic judicial training

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63
Q

What are the criticisms of the Gacaca courts?

A

1) judges themselves were accused of crimes
2) victor’s justice?
3) slow
4) low confidence
5) few procedural rights
6) no appeals

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64
Q

What is the purpose of the Truth and Reconciliation Commission in South Africa?

A

1) establish a picture of human rights violations
2) grant amnesty
3) allow victims to tell their accounts of events
4) produce the record
5) makes recommendations

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65
Q

How is the Truth and Reconciliation Commission organized?

A

1) The Human Rights Violations Committee
2) The Amnesty Committee
3) Reparations and Rehabilitation Committee

66
Q

Who are the judges of the Truth and Reconciliation Commission?

A

17 members appointed by the President

67
Q

What were the criticisms of the Truth and Reconciliation Commission?

A

1) justice as a prerequisite for reconciliation
2) “basic misunderstanding” about amnesty
3) amnesty for crimes against humanity?

68
Q

What are the four categories of legal professionals?

A

1) adjudicators
2) advocates
3) legal advisors
4) legal scholars

69
Q

What is the legal education of common law countries?

A

professional degree; legal profession is unified

70
Q

What is the legal education of England?

A

barristers (“surgeons”) vs solicitors (“general practitioners”)

71
Q

What is the legal education of civil law countries?

A

1) law taught at the undergraduate level as an interdisciplinary program
2) does not prepare students to practice law
3) each legal profession depends on the successful passing of an exam and completion of a period of apprenticeship
4) less unified profession

72
Q

What is the legal education of socialist countries?

A

1) similar to civil law countries, law taught at the undergraduate level and controlled by the university
2) China: students must complete 2 years of legal work, pass a national bar exam, and be approved by the Ministry of Justice
3) prosecutors and judges in socialist countries are state employees, greater horizontal mobility than legal professions in civil law countries

73
Q

What is the legal education of Islamic countries?

A

there is a diversity of approaches

1) Sudan follows civil law (graduate from university, pass bar exam, apprenticeship)
2) Saudi Arabia involves a heavy emphasis on religious orthodoxy

74
Q

What is the difference between barristers and solicitors?

A

barristers: surgeon
solicitor: general practitioners

75
Q

What is private prosecution and who can engage in private prosecution?

A

the victim or the victim’s family had the right to initiate the prosecution

76
Q

What are the differences between the office of public prosecution, procurator, and the police as prosecutors?

A

office of public prosecution: has power and discretion in common law countries
procurator: takes action for a private citizen and also acts in society’s interest, ensures justice is done, initial investigation done by judicial police, 4 types of investigations
police (England and Wales): before 1985 the responsibility for prosecution was with the police, Crown Prosecution Service was created in 1985 as a national service that prosecutes all cases at magistrate courts

77
Q

What is an example of a procurator country?

A

France

78
Q

What is an example of a country having an office of public prosecution?

A

USA

79
Q

What is an example of a country using the police as a prosecutor?

A

England and Wales

80
Q

How is the Crown Prosecution Service different from the office of public prosecutor and the procurator?

A

-a national service that prosecutes all cases at magistrates courts, but the police can still initiate the prosecution

81
Q

What legal traditions rely on lay people to perform the defense function and why?

A
  • Islamic and socialist systems.
  • both have the right to hire a legal counsel but it not required, friends, relatives, co-workers can be called upon to advise them
82
Q

What is the system of assigned counsel?

A

1) the judge appoints lawyers from the list of practicing attorneys in the area
2) public defenders work full-time for the court or part time for both the court and private client (Argentina, Brazil, Peru, Paraguay)

83
Q

What are national or state legal assistance programs?

A

1) In Chile, the Ministry of Justice gives the funds directly to the bar association to finance the judicial assistance service
2) in Mexico, some law schools provide free legal service through neighborhood legal assistance offers

84
Q

What countries use the system of assigned counsel?

A

Argentina, Brazil, Peru, Paraguay

85
Q

What countries use the national or state legal assistance programs?

A

Chile, Mexico

86
Q

What is the relation between the nature of the judicial branch and the selection and training of professional judges?

A

selection and legal training depend on the characteristics of the judicial branch of the government:

a) rational bureaucratic organization
b) politically-orientated organizations

87
Q

What is a professional judge?

A

trained an paid to adjudicate legal matters

88
Q

What are lay people?

A

neither trained in law nor paid to adjudicate legal matters; mostly decide factual issues

89
Q

What are the 3 possible ways in which one can become a judge?

A

1) appointment
2) election
3) self-selection

90
Q

What are the specific features of appointment?

A
  • selected by a member of the executive branch or by a special committee
  • ex: federal judges in US (President + Senate), English judges (Lord Chancellor)
  • judges of the highest court appoint judges of the lower courts
91
Q

What are specific features of election?

A

ex: state, country, and local jurisdictions in the US

- Switzerland: judges are elected by the legislature

92
Q

What are specific features of self-selection?

A
  • potential judges decide to become judges

- exams and extensive apprenticeships

93
Q

What countries use appointment selection of judges?

A

1) USA (President + Senate)
2) English judges (Lord Chancellor)
3) Bolivia, Honduras, El Salvador

94
Q

What countries use election selection for judges?

A

USA, Switzerland

95
Q

What countries use self-selection for judges?

A

civil law countries: Germany, France

some Islamic: Saudi Arabia

96
Q

What is judicial independence?

A

the concept that the judiciary needs to be kept away from the other branches of government

97
Q

What are the 4 forms of lay participation?

A

1) jury
2) magistrates and justices of the peace
3) lay courts
4) mixed tribunals

98
Q

What is the jury form of lay participation?

A
  • jury decides factual issues in the case (guilt of liability of the defendant)
  • right to the jury nullification
  • used in common law countries (USA, UK) along with Austria, Belgium, Norway, Denmark and Greece
  • very few cases are actually tried by the jury
99
Q

What are characteristics of magistrates and justices of the peace?

A
  • stipendiary magistrates (attorneys) vs lay magistrates in the UK, differ in education, frequency of service, reward for their service, and whether they work independently or in tribunals
  • common law countries (UK, USA)
100
Q

What are characteristics of lay courts?

A
  • socialist countries
  • cases tried and decided by lay persons
  • types of cases: civil and minor criminal
    ex: reconciliation boards in the former Yugoslavia
  • informal process, crucial who judges are
101
Q

What are characteristics of mixed tribunals?

A
  • lay judges and professional judges who try cases jointly both factual and legal issues in the case
  • civil law countries (no plea bargains)
  • some lay judges need to have special qualifications
102
Q

How are stipendiary and lay magistrates different?

A

stipendiary magistrates (attorneys) vs lay magistrates in the UK, differ in education, frequency of service, reward for their service, and whether they work independently or in tribunals

103
Q

How does the adjudication system in term of their reliance on lay people look like in Saudi Arabia?

A
  • no lay participation at all, under Islam all judges are assumed to be unbiased
  • quadi decides cases based on the facts according to their own wisdom and the principles of religious law
  • judges takes active role, but legal standards not well-defined
104
Q

How does the adjudication system in term of their reliance on lay people look like in England?

A
  • heavy reliance on lay people (magistrates and jurors)

- juries chosen at random (voir dire process)

105
Q

How does the adjudication system in term of their reliance on lay people look like in Germany?

A
  • uses system of mixed tribunals
  • a single professional judge decides petty offenses, while the mixed tribunal decides more serious cases, with the exception of very serious political offenses (treason, genocide)
  • lay judges are selected for 4 years and work 1 day a month
  • no voir dire
106
Q

What is the composition of mixed tribunals in Germany?

A

1) Schoffengericht: at lower level courts of limited jurisdictions the tribunal is composed of 1 professional judge and 2 lay judges
2) Schwurgericht: at higher level courts of general jurisdiction, the tribunal is composed of 3 professional judges and 2 lay judges

107
Q

What are the common elements in the court organization across the world?

A

1) basic organizational structure (trial, appellate, final courts)
2) procedure depends on the case seriousness

108
Q

What characteristics can be used to describe differences in court organization?

A

1) political organization (centralized, dual)
2) nature of disputes (specialized, general)
3) origin of the laws (secular, religious)
4) inclusion of an informal group
5) qualifications of the decision maker (PJs or LJs)

109
Q

At which courts and in what form do lay persons participate in English courtrooms?

A

Englands court system is unified:

1) magistrates court
2) crown courts
3) court of appeal
4) House of Lords/Supreme Court
5) Criminal Case Review Commission

110
Q

What are the differences between magistrates and crown courts?

A

magistrates: try minor criminal cases and do preliminary hearings in major criminal cases
crown courts: appellate jurisdiction over magistrates courts and original jurisdiction in serious criminal cases

111
Q

What is the highest court in England?

A

Supreme Court/House of Lords

112
Q

What is the Criminal Cases Review Commission in England?

A
  • makes independent reviews of decisions from magistrates courts and crown courts
  • not part of the regular court system
113
Q

How complex is the French dual court system?

A
  • ordinary courts and administrative courts

- Tribunals for Conflicts decides which system should handle the case

114
Q

Which French courts do lay people participate in?

A

assize courts

115
Q

May the Court of Cassation change the lower court’s finding about the facts in the case?

A

it is limited to voiding the legal point of a case

116
Q

Why is the Nigerian court system complicated?

A

it features federal/state, secular/religious, and formal/informal

117
Q

Is the court organization in Nigeria the same among all 36 states?

A

no

118
Q

What would be two typical variations of Nigerian state courts that depend on the dominant religion?

A

modern courts and traditional courts

119
Q

Is the Chinese court system centralized or decentralized?

A

centralized

120
Q

Is there lay participation in Chinese trial courts?

A

yes

121
Q

What are mediation committees?

A
  • informal social control mechanisms with 2000 year long history
  • hear more than 8 million less serious criminal cases annually
122
Q

How does the dual court system in Saudi Arabia look like?

A

Shari’a courts + specialized tribunals

123
Q

Do the same courts handle crimes and business disputes?

A

No there are specialized tribunals

124
Q

Who is the decision maker in the Shari’a courts?

A

Professional Judges

125
Q

What are the typical justifications for sanctions?

A

usually more than one:

1) retribution
2) deterrence
3) rehabilitation
4) incapacitation

126
Q

According to UN surveys, what is the most frequent sanction?

A

economic

127
Q

What is the most frequent non-custodial sanction?

A

financial penalties

128
Q

What are fixed-fine systems?

A

specific offenses are allocated a certain “value” and not based off financial circumstances

129
Q

What are day fines or structured fines?

A

based on the amount of money an offender earns in a day’s work

130
Q

How is the German system of day fines different from the Swedish system?

A

Germany: value of each unit is set by statute as the offender’s net daily income (no deductions for financial responsibilities)
Sweden: put the offenders in an economic jail, but business expenses, maintenance, or living expenses subtracted from a person’s gross annual income

131
Q

What is diyya?

A

one form of restitution paid directly to the victim or his/her family

132
Q

What are donation penalties and where are they used?

A
  • the public interest is satisfied if the offender makes a payment or performs another action that will benefit that public
  • used in Germany
133
Q

What is judicial corporal punishment?

A

punishment of or inflicted upon on his or her body

134
Q

How frequent is judicial corporal punishment?

A

only 3 countries have “reported” it and we don’t know extent of it in muslim countries

135
Q

What data sources do we use to learn about the extent of its application?

A

1) UN Survey for official reports

2) human rights organizations provide the rest

136
Q

How frequent is the death penalty?

A

in 1998, 2258 people were officially executed and 4845 were sentenced to death

137
Q

Which country leads the world in the use of the death penalty and why?

A

China, “by killing one we educate one hundred”

138
Q

What is the difference between the de jure and de facto abolition?

A

De jure: abolish in law

De facto: abolish in practice

139
Q

What has the death penalty trend been the last several decades?

A

more than 1/2 the world’s countries have abolished the death penalty in law

140
Q

What are custodial sentences?

A

sentences where the offender is imprisoned

141
Q

Which 3 countries hold 1/2 of the world’s prisoners?

A

US, Russia, China

142
Q

Which legal rules regulate imprisonment?

A

1) Standard Minimum Rules for the Treatment of Prisoners

2) Basic Principles for the Treatment of Prisoners

143
Q

What are the basic rules of imprisonment?

A

1) separation by age, gender, legal status, and mental state
2) appropriate nutrition, clothing, bedding, exercise, and medical attention
3) opportunities for education leading to self-supporting existence after the release

144
Q

Why do prison rates differ across the world?

A

1) definitions of crimes
2) court preferences
3) alternative sentences limited

145
Q

What similar issues are various countries addressing when dealing with female prisoners?

A

1) small number of women prisoners (6%)
2) impact of imprisoning for drug offenders
3) specific needs and problems of women prisoners

146
Q

Why is prison crowding important?

A

it limits the ability of correctional officials to do their work, increases potential for violence and leads to mental/physical health problems

147
Q

How do countries deal with prison crowding?

A

1) the null strategy
2) the construction strategy
3) the intermediate sanction strategy
4) the population reduction strategy

148
Q

How many countries allow prisoners to occupy individual cells at night?

A

1/6 reported

149
Q

How many countries require having adequate bathing and shower facilities (Rule 13)?

A

all reported

150
Q

How many countries allow every prisoner shall be provided with separate and clean bed (rule 19)?

A

3/4 reported they did

151
Q

How many countries provide enough work for prisoners?

A

1/3

152
Q

How many countries provide education for prisoners (rule 77)?

A

1/3

153
Q

How can non-custodial sanctions be classified?

A

1) sanctions that imply supervision and control

2) sanctions that do not imply such control

154
Q

What is probation?

A

the imposition of a certain restriction on the freedom of offenders without security

155
Q

How did probation develop across the world in the 19th and 20th centuries?

A

1) began in USA with paid probation officers in Boston
2) British placed young offenders in care of relatives/volunteers
3) Europe and Latin America probation spread with the suspended execution of sentence model followed by the probation with supervision model

156
Q

What are the common features of probation today?

A

1) reintegrate the offender back into the community
2) supervise the offender
3) enforce the proceedings for the violation of conditions with the probationers
4) provide information to other criminal justice agencies

157
Q

What is house arrest?

A

offenders are sentenced to terms of incarceration, but they serve those terms in their own homes

158
Q

What are the 3 types of house arrest?

A

1) simple curfew
2) home confinement
3) home arrest

159
Q

What is the underlying idea behind community service?

A

an offender is asked to personally “pay back” the community by performing a set number of hours of unpaid work for a non-profit agency

160
Q

Which countries use community service?

A

UK, US, Canada, Australia, New Wales

161
Q

Where are warnings commonly used?

A

Europe

ISS 315 (3 decks)

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