General Principles of International Criminal Law

Question 1

Art. 25 of the Rome Statute

Answer 1

Individual Criminal Responsibility

Question 2

The Trial of German Major War Criminals

Answer 2

Crimes against international law are committed by men, not by abstract entities, and only by punishing inidividuals who committ such crimes can the provisions of international law be enforced.

Question 3

The foundation of criminal responsibility is in the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged. Principle laid down in Art. 7(1) of the Statute of the International Tribunal.

Answer 3

Tadić

Question 4

The Principle of Legality

Answer 4

Nullum crimen sine lege - nulla poena sine lege

Question 5

this principle os the citizens’ bulwark against the State’s omnipotence. It protects the individual against the ruthless powers of the majority, against the leviathan.

Answer 5

Franz von Liszt

Question 6

This principle has been invoked as a defence thorughout the Nueremberg trials. The french judge, Donnedieu de Varbes has been particularly sensible to this argument as coming from a country which strictly applies it.

“it would be unjust if these crimes would be allowed to go unpunished”.

Answer 6

Goering et al

Question 7

Judge B.V.A Roling argued that this is not a principle of justice but a rule of policy. Together with judge Pal from India.

These judgements highlight the debated statuts of this principle back in those days and reflect the state of the world, many states not applying this principle at that time. China and the Sovient Union for example.

Answer 7

Araki et al

Question 8

The ECtHR discussed a case on this matter.

Answer 8

Kononov v Latvia

Question 9

The principle of specificity - lex certa

Answer 9

Criminal rules must be as detailed as possible
Difficulties arise in ICL - Furundzija, problems in defining rape
“other inhuman acts”, “persecution” also not defined

Question 10

The principle of non-retroactivity - lex praevia

Answer 10

Criminal rules may not cover acts performed prior to their enactement, unless such rules are favor rei.
-> Main defence during the Nuremberg trials

Question 11

Alekovski

Does not prevent the Court from interpretations of the rules, but not one that would extend the law.

Answer 11

Alekovski

Does not prevent the Court from interpretations of the rules, but not one that would extend the law.

Question 12

The ban on analogy - lex scripta

Answer 12

The Courts should Not extend the scope and purport of a criminal rule to a matter that is formally unregulated by law.

Question 13

Milutinović
This principle does not prevent a court from interpreting and clarifying the elements of a particular crime - but prevents court from making new law.

Answer 13

Milutinović
This principle does not prevent a court from interpreting and clarifying the elements of a particular crime - but prevents court from making new law.

Question 14

The principle of favouring the accused in case of doubt - Favor rei
Closely intertwined with the ban on analogy

Answer 14

The principle of favouring the accused in case of doubt - Favor rei
Closely intertwined with the ban on analogy

Question 15

Flick and Others

If from credible evidence two conflictiong conclusions can be drawn - in dubio pro rei.

Answer 15

Flick and Others

If from credible evidence two conflictiong conclusions can be drawn - in dubio pro rei.

Question 16

Akayesu
The meaning of the word killing has been interpreted such as to favour the defendant.

Kristic
The meaning of the word exterminate has been interpreted such as to favour the defendant.

Answer 16

Akayesu
The meaning of the word killing has been interpreted such as to favour the defendant.

Kristic
The meaning of the word exterminate has been interpreted such as to favour the defendant.

Question 17

The principle of legality of penalties

Necessary to lay down a tarfi for the punishment. It is not really applicable in international law however.

Answer 17

Certain limits for judicial discretion exist however

Art. 77 Rome Statute, 24(1) ICTY

Question 18

This apparently strict understanding of the nullum crimen principle, in particular of the principle of non-retroactivity, has a solid basis in comparative criminal law11 and is also recognized in international law.12 However, in international criminal law the principle has, since Nuremberg, been interpreted in a more liberal way.13

Answer 18

Kai Ambos - General Principles of Criminal Law in the Rome Statute

Question 19

Finally, article 23 provides for a very limited nulla poena (sine lege scripta, praevia, certa and stricta) principle, declaring that a person convicted may only be punished by penalties laid down in the Statute.

However, given the general nature of the penalties provided for in the Statute – imprisonment up to thirty years or life on the one hand, and fine and forfeiture of proceeds on the other (arts. 77–80) – the nulla
poena principle is only partly complied with.

Answer 19

Kai Ambos - General Principles of Criminal Law in the Rome Statute