History and Features of ICL

Question 1

What are the three concepts of ICL?

Answer 1

1) National Criminal Law
2) Transnational Criminal Law
3) International Criminal Law

Question 2

What is the purpose of transnational criminal law?

Answer 2

• Includes rules of national jurisdiction under which a State may enact and enforce its own criminal law where there is some cross-jurisdictional aspect of a crime.
• Methods of cooperation to deal with domestic offence with foreign element.
• Treaties providing mutual legal assistance and extradition between states regarding crimes (with foreign element)
• Requires states to criminalise certain types of conduct.

Question 3

What three ways can ICL be defined? (Cryer)

Are there risks with these definitions?

Answer 3

1) A set of rules to protect the value of the international order

Risk: Behaviour subject to international law can’t always be reduced to abstract formulae.

2) Involvement of a state

Risk: liability of individuals which are’t always state agents.

3) Crimes created by international law (Nuremberg quote)

Question 4

How does ICL bridge the tension between PIL and CL?

Answer 4

IL = governing rights and obligations of states.

CL = concerned with prohibitions addressed to individuals, subject to penal action by state.

ICL = international rules creating direct individual responsibility for int crimes.

Question 5

What are four core crimes?

Answer 5

1) War crimes
2) crimes against humanity
3) genocide
4) crimes against aggression.

Question 6

How did Tadic move concern to ICL to individuals?

Answer 6

‘A state sovereignty-oriented approach has been gradually supplanted by a human being oriented approach.’

Question 7

What were the two main problems with basing ICL on PIL?

Answer 7

1) Individuals had no rights and duties in PIL
- Then, human rights doctrines.

2) Enforcement
- PIL: Horizontal nature (state v state)
- Court based jurisdiction on consent.
- Don’t have an executive (SC under Ch 7, but veto powers)

Question 8

ICL draws upon:

Answer 8

1) Human rights law

2) National criminal law

Question 9

In what way does ICL have a double nature?

Answer 9

Criminal: repressive and more detailed, with focus on rights of accused, witness and victim protection

PIL: diplomatic, prevention and often unclear and unambiguous

Question 10

What was the background to the Nuremberg Trials?

Answer 10

• US and SU convinced Churchill in the creation of a Tribunal that would hold war crimes during WW2 accountable. Formed the London Agreement.
• Four judges: UK, France, US and SU. (Different approaches to purpose).
• Codified crimes: crimes against peace, war crimes and crimes against humanity
• Dealt with defence that crimes against peace were contrary to nullum crimen sine lege.
• Aggressive war = established by CL.
• ‘Individuals = international duties’

Question 11

What happened in 1946?

Answer 11

• Tokyo IMT was established. Similar structure to Nuremberg IMT - codifying war crimes, crimes against peace and crimes against humanity.

Question 12

What happened in 1949?

Answer 12

Creation of Geneva Conventions and assumption of grave breaches regime.

Following this, in 1953, there was a draft statute drawn for an ICC but in the end this was halted. In Geneva Conventions, addressed a need for an IC at some point in the future.

Question 13

How were the ICTR and ICTY formed?

Answer 13

• Under Chapter 7 of UN Charter.

- SC resolutions stated violation of IHL as ‘threat to international peace.’ Only SC had such powers at the time.

Question 14

Art 2 of ICTY:

Answer 14

Grave breaches of 1949 Geneva Conventions

Question 15

Art 3 of ICTY:

Answer 15

Violations of law or customs of war

- IAC and NIACs.

Question 16

Art 4 of ICTY:

Answer 16

Genocide

Question 17

Art 5 of ICTY:

Answer 17

Crimes Against Humanity

Question 18

What was ICTY’s relationship with national courts?

Answer 18

Rule 9 of Procedure and Evidence: ICTY had primacy over national courts.

Justified by:
- Compelling international humanitarian interests involved.

• SC’s determination both situations constituted a threat to international peace and security.

Question 19

What did Tadic claim with regard to ICTY’s creation?

Answer 19

1) SC had no authority to set up the criminal court
2) ICTY;s primacy over national courts was unlawful
3) Tribunal had no jurisdiction over crimes he was alleged to have committed.

Question 20

What two questions did AC answer in Tadic?

Answer 20

1) Whether it had authority to adjudicate on the legality of its own creation?
2) Were the actions of the council legal?

Question 21

Art 2 of ICTR?

Answer 21

Genocide

Question 22

Art 3 of ICTY?

Answer 22

Crimes Against Humanity

Question 23

Art 4 of ICTR?

Answer 23

Violations of CA 3 to GCs and AP II.

Question 24

What was ICTR’s temporal jurisdiction?

Answer 24

1994

Question 25

What did ICTR establish?

Answer 25

Individuals criminal responsibility for NIACs.

Question 26

Why did ICC thrive at time came into force?

Answer 26

• War divisions had thawed
• Ad hoc tribunals showed feasibility of international criminal justice.
• International community had begun to create several treaty based initiatives strengthening human rights and humanitarian law.

Question 27

What is difference between ICC and ad hoc tribunals?

Answer 27

• Ad hoc were formed by SC resolution; Rome Statute is a multilateral agreement.
• Permanent.
• Principle of complementarity.

Question 28

What are the different forms of ICC jurisdiction?

Answer 28

1) Subject matter jurisdiction (Art 5-8): most serious crimes
2) Temporal jurisdiction (Art 11): after 1 July 2002.
3) Territorial jurisdiction (Art 12(a))
4) Personal jurisdiction (Art 12(b))

Question 29

What did the AC chamber respond in Tadic?

Answer 29

1. It could rule on its own legality:

Inherent powers in order to determine if it could unlawfully exercise its primary jurisdiction over criminal cases.

2) The actions of the council were legal:
- Entitled to invoke under Ch 7 of UN Charter, as there was armed conflict in Yugoslavia at time.
- Council could set up a court under Art 41 of UN Charter - list of measures it contains is exhaustive.
- Restoration of peace and security - political.