ICCT Flashcards
Interaction CIL and treaty
CIL can be influenced by the content of existing treaties. When states consistently follow and adhere to treaty provisions, these rules may become CIL. This reflects how treaties can shape and contribute to the development of customary norms in international law. On the other hand, treaties can be based on customary law.
ICL features
a. ICL focuses on the criminal responsibility of individuals, rather than States or entities. Other branches of international law focus primarily on the rights and responsibilities of international organizations.
b. ICL is a sub-body of public international law. PIL generally regards States and international organizations.
Public International Law
ICL, International HR law, IHL, Transnational Criminal law.
Types of jurisdiction
Material jurisdiction, temporal jurisdiction, territorial jurisdiction, personal jurisdiction, (individuals who bear the greatest responsibility for the crimes).
Classifying courts
International, national or hybrid based on:
1. Establishment
2. Material jurisdiction
3. National or international or mixed combination.
4. Rules of cooperation
Establishment ICTY: criticism
- The controversy was related to if a political organ, the UN, is able to act in an international criminal judicial area.
- Criticized in that criminal punishment alone cannot create international peace and security.
Case Tadic
Case challenged ICTY jurisdiction over him. –> response from UN that the SC has the responsibility to deal with threats against international peace and security.
Establishment ICC: critcism
- Political level, i.e., the role of the SC, and that the prosecutor can also bring a case before the ICC.
- Technical level, i.e., the implementation of rules of criminal procedures by criminal lawyers from very diverse legal systems.
Moscow declaration
Establishment Nuremberg (1943). Stated that States should punish their nationals (–> jurisdiction)
IMT & IMTFE: criticism
- Victor’s justice: As there was an issue of by whom the perpetrators are tried: one-sided prosecution.
- Cultural misunderstandings and insensitivities allegedly affected the trial.
- Ex post facto: Applicable law was designed to guarantee a conviction of the perpetrator. This would mean ex post facto legislation of crimes against humanity and crimes against peace. However, there was the Moscow Declaration, which was recognized during the committed crimes. This perspective argues that the perpetrator was aware of their ‘criminal’ action. Moreover → principle of justice (opinio juris).
- Similar acts committed by prosecuting States, but not prosecuted (tu quoquo)
London Conference
Establishment of the Charter
MICT
Mechanism for ICTR and ICTY. Continues jurisdictioo rights, obligations and essential functions of the tribunals.
Similarities ICC + tribunals
(i) material jurisdiction, (ii) dependent on state cooperation
Difference ICC + tribunals
(i) established by ICC Treaty, tribunals by SC resolution (ii) complementarity vs. primacy (iii) temporal/territorial jurisdiction
ICC: temporal jurisdiction
After 1 July 2002, or after ratification/becoming State Party [Art. 11]
Ad-hoc hybrid (internationalized) criminal tribunals
The Special Court for Sierra Leone (SCSL)
The Extraordinary Chambers in the Court of Cambodia (ECCC)
The Special Tribunal for Lebanon (STL)
The Kosovo Specialist Chambers (KSC)
The principle of legality
The principle of legality is a fundamental principle of criminal law that criminal responsibility can only be based on a pre-existing prohibition of conduct that is understood to have criminal consequences.
Nullum crimen, nulla poena sine lege
No crime and no punishment without law that is: (1) Pre-existing, (2) precisely formulated, (3) written, (4) strictly interpreted and applied by courts.
Difference: between the principle of legality & nullem crimes sine lege
The latter does not reflect the non-retroactivity aspect.
Sources of ICL
[Art. 38 of ICJ Statute]
1. International treaties: Binding only on state parties or international organizations
2. International custom: (1) State practice (usus) arising from a sense of (2) legal obligation (opinion juris)
3. General principles of law (“gap filler”): National laws that show that “most, if not all, countries adopt” the particular legal notion.
–> first 3 most important
- Legal precedents (case law): Stare decisis doctrine (to stand by things/let decision stand), so same decisions must be followed in future similar cases.
- Judicial decisions and highly qualified scholars: As subsidiary source of law!
Jus cognes
Type of customary law that trumps all other law. Always bound!
CIL: disadvantages
Unwritten law is difficult to ascertain its content, which makes it (i) uncertain. The aspect of the clarity of law is at stake. Secondly, it may be too (ii) imprecise to, for example, find criminal liability.
Sources: State practice
(i) Military acts, (ii) diplomatic correspondence, (iii) national legislation and statements of the ministry on that legislation, (iv) certain legal position that a state takes
Sources in AdHoc tribunals
Retrospective –> after commission of the crimes, with CIL as main source (legality principles)
Mens rea: Direct intent
The suspect knows that his acts or omissions will result in the commission of a crime and carries out these acts/omissions with the purposeful will (desire) to commit that crime.
Mens rea: Indirect intent
Knowledge. The suspect knows that his acts or omissions will certainly result in the commission of the crime and nevertheless accepts this by carrying out those acts/omissions, without desiring the crime
Mens rea: dolus eventualis
Dolus eventualis/recklessness. The suspect is aware of a risk that his acts or omissions may result in the commission of a crime and nevertheless accepts (approves) that risk → RS excludes conditional intent!
WC: legal IHL basis
- Hague Conventions (1899, 1907) = Methods and means of warfare.
- Geneva conventions
- AP
Geneva Conventions
I wounded & sick field, II wounded & sick sea, III pows, IV civilians
GC AP
I IAC, II NIAC, III protective emblem; the red crystal.
WC: 2 categories
- Grave breaches of GC, 2. Violations of the laws and customs of war
WC: Grave breaches GC: contextual elements
- Existance of IAC
- Nexus between the criminal act and the IAC
- Victim as protected person under GC
WC: Grave breaches GC: contextual element 1
Definition: An international armed conflict is defined as a resource to violence between the armed forces of two or more states.
Internal wars can be internationalized by the intervention of a 3rd state: Direct & indirect intervention
- Direct intervention by a third state against the host state, which means that the third state is fighting alongside the rebels.
- Indirect intervention by a third state against the host state, which can be defined as the use of rebels by the third state as “proxy” forces to fight the territorial state. In order to determine whether this is the case, the ’’overall control test’’ is applied.
Overall control test
The controlling state has a role in: (i) organizing, coordinating, or planning the general military actions of the military group, AND is (ii) financing, training and equipping, or providing operational support to that group.
WC: Grave breaches GC: contextual element 2
Must be ‘closely related’ to the IAC. And the IAC must have played a substantial part in the perpetrator’s (i)ability to commit, (ii) decision to commit, (iii) manner in which it was committed or (iv) purpose for which it was committed.
WC: serious violations: contextual elements
- Existance of NIAC/IAC
- Nexus between criminal act and the armed conflict
- Victim took no part in hostilities
WC: serious violations: contextual element 1
IAC: An international armed conflict is defined as a resource to violence between the armed forces of two or more states.
NIAC: Protracted armed violence between a state and an organized armed group within that state, or between such groups within a state.
Requirements NIAC
- ‘Intensity’ requirement = Art. 8(2)(d)
- ‘Organization’ requirement = Armed group’s internal hierarchy and command structure, access to military equipment, ability to plan and execute military operations, etc.
WC: serious violations: contextual element 3
Victim ‘took no active part in hostilities’: Common Art. 3 GC. Including fighters who surrender or are rendered hors de combat.
Legal qualification: Serious violation of the laws and customs of war
- Violate a rule of IHL
- Rule must be customary/binding
- Must protect important values (e.g. fundamental HR) and its violation must have grave consequences for the victim.
- Such a violation must entail the individual criminal responsibility of the perpetrator
Grave consequences for the victim
Not necessarily permanent and irremediable harm, but harm that goes beyond temporary unhappiness etc. Must result in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.
CAH [Art. 7(1)]
Means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
Differences CAH & war crimes
(a) no need for context armed conflict,
(b) no isolated act, always part of mass criminality,
(c) War crimes focussing on reciprocity between parties to a conflict, and focusing on protecting the enemy. CAH protects all victims.
(d) War crimes focus on conduct even on the battlefield and against military objectives, whereas CAH concerns actions directly to a civilian population.
CAH: contextual elements: ICL/ICC
(i) There must be an attack, which is
(ii) directed against any civilian population.
(iii) the attack must be widespread OR systematic
(iv) acts of the perpetrator must be part of the attack (nexus), and
(v) the perpetrator knew that his acts are part of a widespread or systematic attack against the civilian population.
CAH: contextual elements: extra ICC
The attack must be pursuant to or in furtherance of a State or organizational policy to commit such attack:
CAH: contextual elements: extra ICC definition
‘State or organization’: Narrow view vs broad view (ICC approach) → Loose organizations that have the material ability “to perform acts which infringe on basic human values” may qualify as ‘organizations’.
‘Policy’: Need not to be formalized. Showing that an attack was ‘planned, directed or organized’ suffices.
CAH: ‘Attack’
Conduct involving the commission of acts of violence.
CAH: ‘Directed against’
Civilian population as primary object.
CAH: ‘Any civilian population’
‘Any civilian’ could be own or foreign civilian population, as persons who are not taking active part in the hostilities.
‘population’ Attack must be directed against more than a limited number of random individuals + must be ‘predominantly civilian’ → presence of combatants does not deprive the population of its civilian character.
CAH: ‘Widespread’ & ‘systematic’
‘Widespread’ refers to the large-scale nature of the attack and the number of targeted victims.
‘Systematic’ refers to the organized nature of the acts of violence and the improbability of their random occurrence.
CAH: ‘Nexus’
‘Nexus’: perpetrator’s act is ‘sufficiently connected’ to the attack against the civilian population.
CAH: ‘Knowledge’ –> mens rea
- Intent
- The accused must be aware of the ‘broader context in which his actions occur’ → context of widespread or systematic attack.
Perpetrators need not know the details of the attack, motives are irrelevant.
Genocide [Art. 6]
Means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group
Genocide: mens rea
Two elements of mens rea: (i) intent to commit the underlying offense listed in the actus reus → Art. 30, and (ii) dolus specialis = intent to destroy, in whole or in part, a national, ethnical, racial or religious group [say that it is an exhaustive list].
Genocide: ‘intent’
‘Intent’: Intent, not necessarily succeeded.
Genocide: ‘destroy’
‘Destroy’: Must be material (physical or biological), so not conversion or destruction of culture etc.!
Genocide: ‘all or part of’
‘All or part of’: Part of must be significant enough to have impact on the group as a whole.
Genocide: contextual legal element: extra ICC
Conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
Genocide: ‘manifest’
‘Manifest’: Pattern must be clear, and within a broader context in which others also committed acts of genocide.
Genocide: ‘Conduct […] destruction’
‘Conduct […] destruction’: No need for a manifest pattern. Provision relevant for when the accused has access to powerful means of destruction and only destroys a single or few deaths. So could also be a single perpetrator with means.
Liabillity: general legal theory
- unitary/monist approach (no distinction accesorial and principal) , 2. differentiated/dualist approach (there is distinction)
Principal responsibility: definition
Principal perpetrator responsibility is independent from that of other parties to the crime → responsibility for the crime proper.
Accessory responsibility: Definition
The principal must commit (or at least attempt) the underlying crime; a defense for the principal affects the responsibility of the accessory.
given
Direct perpetration (commission): Art. 25(1)(a): actus reus
Accused carries out physically or otherwise directly … the material elements of the crime.
Direct perpetration: mens rea
Art. 30
Indirect perpetration: [Art. 25(1)(a): definition
Using another person as an instrument to commit crime.
Indirect perpetration: types
- AdHoc tribunals: The ‘innocent agent’ doctrine:
- ICC: Through organized power apparatus doctrine:
Innocent legal doctrine (indirect): actus reus
Accused use(s) an intermediary, who is not himself criminally liable and thus cannot be considered to have any culpable part in the crime (either because he is a minor, or mentally incompetent, or because he acted under coercion) to commit the crime.
Innocent legal doctrine (indirect): mens rea
The accused directly intends that the intermediary commits the charged crime, or is at least aware of and accepts that possibility → dolus eventualis.
Organized power apparatus doctrine: actus reus
(i) Accused controls a hierarchical organization that ensures ‘automatic compliance’ with his orders
(ii) the accused uses that organization to direct its subordinates to commit crime.
Organized power apparatus doctrine: mens rea
Accused has direct or indirect intent to commit the crime. [Art. 30]
Joint perpetration / co-perpetration: definition
Committing a crime together with one or more other persons.
JCE: definition
Where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons.
JCE: categories
I: Basic, II: Systematic, III. Extended (includes JCE I)
JCE: actus reus
SAME FOR ALL CATEGORIES:
1. The existence of a plurality of persons;
2. A common plan that amounts to or involves the commission of a crime;
3. The accused person’s significant contribution to the said common plan.
JCE: actus reus: ‘plurality of persons’
‘Plurality of persons’: Two or more persons, doesn’t have to be organized in a certain matter.
JCE: actus reus: ‘Common plan’
‘Common plan’: Persons must expressly or implicitly agree to commit a crime, so that is either the end goal or the necessary means (no need to be written down).
JCE: actus reus: ‘Significant’
‘Significant’: Between minimum and essential. Common plan would have been hampered or executed less efficiently without the contribution of the accused. Membership to the group does not suffice, there has to be some form of action of the accused.
JCE 1: mens rea
All co-defendants, acting pursuant to a common design, possess the same criminal intention [i.e. shared direct intent, purpose].
JCE II: mens rea
Existence of an organized criminal system (concentration or detention camps). Requires personal knowledge of the organized system and intent to further the criminal purpose of that system.
JCE III: mens rea
Liability for an excess crime, other than the crime agreed upon in the common plan, arises if: (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.
The formal-objective approach =
Participants whose acts constitute the objective elements of the crime’s definition are co-perpetrators.
The subjective approach
Participants who have the same mindset of perpetrators are co-perpetrators. Those who do not identify with the crime and whose will is simply to support the crime of another person are accessories.
The material-objective approach =
Participants whose acts were essential for the commission of the group crime – i.e. without whose contribution the crime will not have taken place – are co-perpetrators.
given
Co-perpetration: ICC: definition
[Art. 25(3)(a)] Based on joint control over the crime.
ICC: Co-perpetration: actus reus
- Existence of a common plan, between the accused and at least one other person, to commit a crime;
- The accused provides an essential contribution to the execution of the said common plan, resulting in the commission of the crime.
ICC: Co-perpetration: mens rea
- The accused fulfills the subjective elements of the crime in question;
- The accused and the other confederates are mutually aware and accept that executing the common plan would result in the commission of the crime;
- The accused is aware of the factual circumstances that enable him to jointly control the crime.
Indirect co-perpetration: definition
Horizontal co-perpetrator in organization is co-responsible for the crimes committed by those for whom another co-perpetrator is vertically responsible. → combination of co-perpetration and indirect perpetration.
Indirect co-perpetration: types
- Leadership-Level JCE: AdHoc tribunals
- Joint Control over organized structure of power: ICC
Indirect co-perpetration: AdHoc tribunals
Common plan/purpose. Member(s) of the JCE use(s) a person outside the JCE to carry out the actus reus. Does not matter whether the JCE carries out the actus reus.
Indirect co-perpetration: ICC: actus reus
- The accused must be part of a common plan or an agreement with one or more persons;
- The accused must provide a coordinated essential contribution to the plan, resulting in the commission of the crime;
- A hierarchical organization; where the accused has control over the organization;
- Execution of crimes secured by automatic compliance with the accused’s orders.
Indirect co-perpetration: ICC: mens rea
- The accused must satisfy the subjective elements of the crime(s);
- The accused and the other co-perpetrators must be mutually aware and accept that implementing the plan will result in the commission of the crime(s);
- The accused must be aware of the factual circumstances enabling him to exercise joint control over the commission of the crime through another person(s).
Planning: definition/actus reus (CIL)
Requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.
Planning: requirements (CIL)
- Substantial effect: Plan must have substantial effect on the commission of the crime: planning does not necessarily need to relate to the commission of a particular offense.
- Substantial contribution: Perpetrator does not have to be one of the prime movers in plan.
Instigating: definition/actus reus (CIL)
Implies prompting another person to commit an offense.
Instigating: requirements (CIL)
Causal relationship! Can be expressed implicetly/explicetly
Ordering: definition/actus reus (CIL)
Ordering […] a person in a position of authority […] instructing another person to commit an offense.
Ordering: requirements (CIL)
- Superior-subordinate relationship: Not legally per se, but factually in a position of authority that would compel another to commit a crime in following the accused’s order.
- Substantial contribution: Order must at least substantially contribute to the commission of the crime.
- Transmission of an order: Established by circumstantial evidence. Does not have to be the author of the order, passing it down the chain of command (e.g. through intermediaries) suffice.
Planning, instigating, ordering: mens rea (CIL)
A person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability.
Difference indirect preparation and ordering:
Indirect perpetration is reserved for instances when you have a hierarchy organization that can ensure automatic compliance with orders.
Ordering: definition/actus reus (ICC)
Same as ICL → only difference is that the crime must have occurred or attempted.
Soliciting: definition/actus reus (ICC) OR same as instigating (doesnt matter)
Asking or urging the physical perpetrator to commit the charged criminal act. –> lowest form
Inducing: definition/actus reus (ICC) OR same as instigating (doesnt matter)
Exerting influence over the physical perpetrator, either by strong reasoning, persuasion or conduct implying the prompting of the commission of the offense. –> stronger form
Ordering, soliciting, inducing: mens rea (ICC)
Common mens rea!
Direct intent or indirect intent under Article 30 RS.
Incitement: definition/actus reus (ICC)
A call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media, for example, radio or television –> attempt to genocide is a crime in this way.
Incitement: mens rea (ICC)
Direct intent or indirect intent under Article 30 RS. + genocidal intent
Conspiracy: actus reus (CIL)
Conspiracy to commit genocide is an agreement between two or more persons to commit genocide.
Conspiracy: mens rea (CIL)
Intent + genocidal intent
given
Attempt: actus reus (ICC)
Art. 25(3)(f)
Attempt: mens rea (ICC)
Art 30
Aiding and abetting: definition/actus reus (ICC + CIL)
The aider and abettor carries out acts specifically directed (i) to assist, encourage or lend moral support to the perpetration of a certain specific crime…
(ii) and this support has a substantial effect upon the perpetration of the crime.
Aiding and abetting: ‘Abet’
Moral or psychological assistance of the accessory to the principal perpetrator, shown in a form of encouragement of sympathy, which does not need to be explicit. Even being present (as a superior or some sort) at the crime can be construed as tacit approval.
Aiding and abetting: ‘Assistance’
‘Assistance’: practical/material assistance. Allowing resources for which a person is responsible to be used for crimes suffice.
Aiding and abetting: ‘‘Substantial effect’’
‘Substantial effect’: Any assistance which is more than de minimis. Substantial effect on the commission of the crime by the perpetrator → between minimal and essential (without the act the crime would’ve been committed).
Aiding and abetting: mens rea (CIL)
Knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. –> The conduct itself need not to be intrinsically criminal so long as its factual effects result in the assistance of the criminal act.
Aiding and abetting: ‘knowledge’ (CIL)
‘Knowledge’: of the possibility, so the accused does not need to know with certainty that the contribution is going to the commission of crime. → probability. ‘Awareness […] of the essential elements of the crime committed by the principal would suffice.’
Aiding and abetting: ‘specific crime’ (CIL)
‘Specific crime’: Accused must at least know which crime is going to be committed, but not the details.
Aiding and abetting: mens rea (ICC)
Art. 30 + ‘‘For the purpose of facilitating’’ Art. 25(3)(c) –> higher threshold than CIL
Command responsbility (CIL): legal elements
- Functional legal element: Existence of a superior-subordinate relationship:
- Mens rea: The superior knew or had reason to know that the criminal act was about to be or had been committed by his/her subordinates.
- Actus reus: The superior failed to take the necessary and reasonable measures to prevent the criminal act or to punish the perpetrator thereof.
Command responsbility (CIL): contextual element elaboration
The accused (i.e. commandar/superior) has ‘effective control’ (= material ability to prevent or punish crimes by subordinates) over the perpetrators. Factual ability to prevent and punish → such as capacity to promote or remove people.
You can have de jure or de facto control/relationship with subordinates.
The accused has to be by virtue of his position, senior in some sort of formal or informal hierarchy to the perpetrator.
Command responsbility (CIL): mens rea elaboration
‘Knew’: actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes
‘Had reasons to know’: more than mere negligence; the commander was given some general information which would have put the commander on notice of possible unlawful acts of such offenses by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about or be committed. Knowledge of a general form of criminality does not suffice.
Command responsbility (CIL): actus reus elaboration
‘Prevent or punish’: two separate, independent legal duties. Failure to prevent the requirement is inherent as when superiors fulfilled their duty, the subordinates’ actions wouldn’t have occurred.
‘Reasonable and necessary measures’: commander not required to do the impossible. If he did anything he could, he isn’t responsible.
Role chronolology: If he knew about the crimes before they occurred, he ought to prevent them. Then it cannot be remedied by subsequently punishing the subordinate for the crime.
Difference command responsibility in ICC & CIL
ICC is split up in 2 and differs in mens rea –> higher threshold for military commanders
Command responsbility (ICC): mens rea
Only mens rea differs in two kinds:
1. Military commanders: ‘’Knew or, owing to the circumstances, should have known that the forces were committing or about to commit such crimes’’.
2. Civilian superiors: ’Knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes’’. → almost same as ICL.
Command responsbility (ICC): ‘‘Knew, should have known’’
Active duty to get to know subordinates’ conduct.
‘Should have known’: knowledge of the possibility that the crime would be committed. Criminal negligence standard, and that failure to [take measures] seek out information could lead to liability.
Command responsbility (ICC): ‘Consciously disregarded information’
‘Consciously disregarded information’: there is information available to civilian commander that should note him that crimes are about to be committed. → ‘forgetting’ also under this.
Command responsbility (ICC): ‘Knew’ (civilian superior)
‘Knew’: Constructive knowledge that should put him on notice and prompt him to investigate, in this case they should inquire further.
Control Council Law No.10
Law adopted by the Allies Control Council in Germany providing for the punishment of persons guilty of war crimes
Substantive defenses =
The accused was justified to act as he did, or is not culpable for his actions (justification / excuse).
Procedural defenses =
Raises procedural bars against prosecuting the accused (e.g. immunities, statute of limitations).
Justifications =
- Negate the wrongfulness (wrongdoing) of the act.
- Conduct was not unlawful; he was right to act so.
- Self-defense, necessity
Justifications: influence on liability
Responsibility of accessories: Generally legitimizing effect, so there is no criminal act: if no crime committed, then also no criminal liability for accessories.
Absolves defendant of any blame and responsibility and provides her with a legal validation of her conduct. The act cannot be labeled as a crime, because he was justified to act the way he did. There is no crime to speak of altogether.
Excuses =
- Negate the culpability (blameworthiness) of the accused for his/her wrongful actions.
- Conduct was unlawful, but unjust to hold him responsible.
- Mental defect, intoxication, duress
Excuses: types
Two types: (i) mitigating/partial, (ii) exculpating/complete.
Excuses: influence on liabilty
Responsibility of accessories: Pardoning effect, for individuals who claim an excuse: it does not apply to other parties to the crime.
Mental defect:
The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct (cognitive test), or capacity to control his or her conduct (volitional test) to conform to the requirements of law”.
Mental defect: ‘‘‘Destroy’
Complete and not partial destruction of cognitive or volitional capacity. A diminished capacity → partial excuse.
Mental defect: time frame
Time frame: The accused must suffer from mental defect at the time he/she committed the crime. Current mental defect, during trial proceedings may be a procedural defect.
Mental defect + intoxication: ‘‘‘Cognitive test’
‘Cognitive test’: Person is unable to (i)understand the nature of his or her conduct OR unable to (ii) understand the unlawfulness of his or her conduct.
Mental defect + intoxication: ‘‘‘Volitional test’
‘Volitional test’: Knowledge of that conduct is unlawful but capability to control its actions are destroyed.
Intoxication:
The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct (cognitive test), or capacity to control his or her conduct to conform to the requirements of law (volitional test), […] unless that person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court.
Intoxication: Voluntarily intoxicated
Voluntarily intoxicated = Only a defense when a person did not realize that he or she might engage in conduct prohibited whilst intoxicated, and was not at fault by disregarding such a risk (Bona fide intoxication) → aggravated circumstance.
Intoxication: Chronic alcoholism or addiction to drugs
Plea is that the mental element is not formed due to the intoxication → failure of proof of the mens rea.
Self-defense:
The person acts reasonably to defend himself or herself or another person [or property] against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected.
Self-defense, duress, necessity: Reasonableness requirement
Necessary and adequate, using minimum necessary force (least harmful conduct). Used the minimum amount of force that was necessary to avoid the threat he was confronted with/was a lesser amount of force an option under the circumstances?
Test with: Reasonable person standard and garantenstellung
Reasonable person standard =
Objective standard: rooted in the search for the generally accepted standards of conduct applicable to all individuals. Whether a ‘reasonable person’ in the defendant’s circumstances would have perceived the conduct as necessary.
Garantenstellung =
Person’s special responsibilities lead to higher standards than that of an ordinary (reasonable) person, because of function.
Self-defense: ‘property’
Expansion of defense for military mission property was controversial, while others said it’s necessary for states with limited rights to use force as self-defense.
Self-defense: ‘imminent’
Direct or ongoing, Imminent suggests that a person must not wait for someone else to strike the first blow. → difference duress/necessity!
Self-defense: ‘unlawful’
Contrary to laws of war.
Self-defense: ‘proportionality’
Does not cause greater harm than the one sought to be avoided. However, ‘eagle-eye’ hindsight must be avoided
Duress: definition
Duress is about compulsion made by another person, leaving you with lack of freedom of will/choice. It is an excuse, because it does not justify any wrong.
Duress/necessity Art 31. (d)
The [crime] has been caused by duress resulting from a threat of imminent death or […] imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person’s control.
given Art. 31(1)(d)(ii)
Necessity: definition
Necessity = Is about “circumstances” placing a person at an “unavoidable choice of evils”.
Duress, necessity: imminence requirement
Imminent is very serious, and it is not the same as Art. 31(1)(c). Threats may be against multiple people; no relationship between the threatened people is required. Threats must be real, not subjective for the defendant!
Duress, necessity: proportionality requirement
Whether the accused’s actions caused greater harm than the harm he was trying to avoid that was caused by threat.
Duress: ‘other persons’
Made by specifically other person.
Necessity: ‘Other circumstances beyond that person’s control’:
Excludes situations where the person could have had an influence (e.g. joining a notorious criminal group).
Mistake of fact & mistake of law:
[…] if it negates the mental element required […]. –> Art. 32
Mistake of fact: definition
Accused mistakenly perceived a descriptive element of the charged crime. If a person genuinely and (not necessarily required) reasonably believed certain facts to be true and, based on that belief, committed that act, then it allows for the possibility that this mistake of fact might be considered.
Descriptive element = One that can be perceived with the five senses.
Mistake of law: definition
Accused mistakenly interpreted a normative element of the charged crime. Said mistake negates the mental element of the charged crime. –> So a mistake about something that needs legal judgment (!)
Normative element = It is value-based and requires assessment/interpretation.
Mistake of law: Ignorantia iuris neminem excusat
Ignorantia iuris neminem excusat = Holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content. → provisions excludes ignorance/mistakes.
ICL procedure:
Trigger ICC jurisduction
Preliminary examination (OTP)
Investigation (OTP)
Decision to prosecute (OTP)
Confirmation of charges (PTC)
Trial
Sentencing
Appeal
Review
Victim reparations
Preliminary situation (IRAC)
A preliminary examination is opened to determine if there is a reasonable basis to initiate an investigation into a situation.
3-step legal test for situation/case
The Court must have jurisdiction over the crime, the case must be admissible, and there must be no reasons to believe that an investigation would not serve the interests of justice.
3-step legal test for situation: specific
- Jurisdiction: Reasonable basis to believe that crimes within the jurisdiction (material etc.) of the Court were committed in the said situation.
- Admissibility: ‘Reasonable basis to believe’ that prospective cases arising from the said situation would be admissible.
- Interests of justice: Consider if there are “substantial reasons to believe that opening an investigation into the said situation would not serve the interests of justice’’
3-step legal test for situation/case: jurisdiction elaboration
‘Crimes within the jurisdiction’: If SC referral, no need for territorial/personal jurisdiction!
3-step legal test for situation/case: admissability (1. complementarity)
- Complementarity requirement:
Whether potential cases/situations are: Art. 17(1)(a)-(c). In respect to Art. 17(1)(c) → unless you can prove that the trial was not genuine Art. 20(3). –> ONLY IN CASE PHASE
If any is ‘’yes’’ → case is inadmissible, unless:
The national authorities are “unwilling or unable to genuinely” investigate/prosecute potential cases:
Indicia of ‘unwillingness’: Art. 17(2)
Indicia of ‘inability’: Art. 17(3)
3-step legal test for situation/case: interests of justice elaboration
e.g. interests of victims, or further elaboration could cause more conflict
3-step legal test for situation/case: admissability (2. gravity)
- Gravity requirement: “Situation” admissible at the ICC only if “of sufficient gravity” → (Factors:
- Scale of the crimes: Number of crimes and victims.
- Nature of the crimes: Prioritizes crimes such as killing, sexual violence and other attacks on personal autonomy.
- Manner of their commission: Systematicity, cruelty, discrimination, abuse of power, vulnerability of victims.
- Impact: Suffering, social/economic damage etc.
3-step legal test for case: specific
- Jurisdiction: Has the suspect committed crime(s) within the ICC jurisdiction?
- Admissibility: Would the Prosecution’s case against this suspect be admissible before the ICC?
- Interests of justice: Would it be against the interest of justice to prosecute this suspect?
3-step legal test for case: case requirement
Case = National investigation must cover the same individual and substantially same conduct as alleged in the proceedings before the Court.
Investigation (IRAC)
Upon investigation, the Prosecution can decide to charge a suspect if there is sufficient evidence to establish ‘reasonable grounds to believe’ that the case against him/her would be admissible.
Decision to prosecute:
Issuance of arrest warrants (Art. 58). If OTP investigation satisfies the 3 steps, OTP drafts an indictment and request the PTC to issue a warrant of arrest
Decision to prosecute: 2 requirements
- It is satisfied that there were ‘reasonable grounds to believe’ that the suspect committed crime(s) within ICC jurisdiction.
- Arrest necessary to: (i) ensure appearance at trial; (ii) ensure suspect does not obstruct justice; or (iii) prevent suspect from committing crimes.
Confirmation of charges: standard of proof
Sufficient evidence to establish substantial grounds to believe that the person committed the charged crimes. Concrete and tangible proof demonstrating a clear line of reasoning underpinning specific allegations”? –> causes a mini-trial (defense can also object etc.)
Art. 66: Presumption of innocence: characteristics
- Everyone shall be presumed innocent until proven guilty before the Court […].
- The onus is on the Prosecutor to prove the guilt of the accused.
- Prosecutor: Must prove that the guilt of the accused is beyond reasonable doubt in order for the Court to convict them.
- Defense: On a balance of probabilities, defenses (e.g. inxotiation etc.) must be more probable than not → defense
Sentencing: penalties
Penalties: (i) imprisonment, max. is life sentence (30 years); (ii) fine, (iii) forfeiture of property, assets derived of the crime. → NO capital punishment!
Grounds of appeal:
- Error of fact (evidence issues)
- Error of law
- Procedural error (e.g. evidence gathered through torture)
- ”Any other ground that affects the fairness or reliability of proceedings” (only for convictions)
- Appeal against sentence: Disproportion between the crime and the sentence
Review proceedings =
Last resort, exceptional remedy for severe miscarriage of justice.
Ground for review proceedings:
(i) new evidence, (2) false/forged evidence, (iii) misconduct judges.
Domestic enforcement of ICL: Personal jurisdiction: types
Active personality principle
Passive personality principle
Active personality principle
Allows a state to assert jurisdiction over a person based on the nationality of the offender.
Passive personality principle
Allows a state to assert jurisdiction over a person for crimes committed against its nationals abroad → established in IL.
Universal jurisdiction
Jurisdiction established over a crime without reference to the place of perpetration, the nationality of the suspect or the victim or any other recognized linking point between the crime and the prosecuting State.
HR law and ICL
ICL and its tribunals were created in response to mass abuses of HR by States. Parts of ICL have been created in response to violations of HR. International human rights bodies now have a greater interest in ICL.
Differences between ICL and HRL:
a) Almost every IC would be a violation of HRL, but the converse does not apply. ICCT does not exist to prosecute violations of the whole panoply of HR.
(b) HR obligations are imposed upon States, and do not necessarily mean criminalizing the activity concerned.
© ICL is stricter and in favor of the accused, HRL has a more broad interpretation (also on penalties).
3 ways in jurisdiction is asserted:
Legislative jurisdiction = Right of a State to pass laws that have a bearing on conduct. However, States are entitled to protest assertions of legislative jurisdiction which are unwarranted under IL.
Principle of non-intervention holds the right of sovereignty.
Adjudicative jurisdiction = Extent to which domestic courts can apply their State’s laws and pass judgment on matters before them. State’s are more assertive in protecting this jurisdiction, because a court actually asserts jurisdiction.
Executive jurisdiction = Most intrusive of jurisdictional claims. It is the right to effect legal process coercively (but not in any form in the territory of another state).
Territoriality principle =
States have the right to exercise jurisdiction over all events on their territory (including quasi-territorial jurisdiction).
Territoriality principle: types
The State has jurisdiction when the crime originates abroad (objective territorial jurisdiction) or is completed elsewhere (subjective territoriality), as long as at least one of the elements of the offense occurs in its territory.
Ubiquity principle =
Wherever a part of a crime (including complicity) occurs, there is territorial jurisdiction. –> territoriality
Nationality test =
Nationality jurisdiction relies on the link between the national and the State to which he or she owes allegiance. The person must have a ‘genuine connection’ with the alleged State.
Protective principle =
State is entitled to exercise protective jurisdiction over extraterritorial activities that threaten State security (e.g. spying).
Universal jurisdiction: types
Absolute/pure universal jurisdiction = Jurisdiction over IC in absentia of territory of the investigating State.
Conditional universal jurisdiction = Jurisdiction over IC when the suspect is in presence of the State’s territory.
Issues national prosecutions:
- Prosecutorial selectivity = Reluctance of States to prosecute their own nationals.
- Legal questions: such as criminalization gaps, vagueness of the law, retroactivity etc.
- Limited expertise and experience in ICL
Universal jurisdiction: legal basis
The four GC (1949) and AP I covering ‘grave breaches’ under these instruments (aut dedere aut judicare).
Customary obligations and Jus Cogens arguments:
ICs are criminalized in CIL. A duty to prosecute or extradite exists in CIL which binds all States, regardless of whether they are party to the relevant treaty. –> constant breach of the obligation.
Domestic legislation: ways to implement
- New penal legislation.
- Adopt the offenses as defined in the ICC Statute.
- Transform the offenses into the normal legal terminology of the national system.
- Ensuring that ‘ordinary’ offsenses already exist in domestic law, covers all conduct that also falls within the ICC Statute.
Factors contributing to ICC negotiations:
Took place at a fortunate moment in international relations. Because:
1. Cold War divisions had thawed
2. Ad-hoc tribunals proved the feasibility of international criminal justice
3. International community had strengthened HR and humanitarian law based on treaties.
The Assembly of State Parties =
Created by the Statute to oversee the administration of the Court, adopted important subsidiary instruments, including Elements of Crimes and the Rules of Procedure and Evidence (RPE).
Art. 12 ICC
Art. 12 gives the Court territorial jurisdiction of States accepting the Court’s jurisdiction, OR committed by nationals of these States → territorial and nationality-based jurisdiction.
Advantages mixed courts:
a. Overcomes the operational limitations and legitimacy deficits of international criminal jurisdictions.
b. Embedded in local justice system → (1) better address sovereignty concerns; (2) empowering the State emerging from conflict or transitional period.
- Promote local ownership of justice processes: Active involvement by the affected, build judicial and prosecutorial capacity in post-conflict societies.
- Less expensive.
Mixed courts: types of establishment
- Established by an (a) bilateral = state and international organization, (b) multilateral = between states agreement.
- Established by an international transitional administration replacing domestic institutions
- Established by a State under national law but with international support
Genocide Convention (1948):
Due to the restriction in definitions of CAH of Nuremberg Tribunal, need to separate genocide. Later, in 1952, ICJ declared that the prohibitions contained in the convention constituted to CIL.
Difference genocide & CAH
a. Differences in the intent.
b. CAH protects groups from discrimination rather than elimination.
Genocide: exhaustive list
The before-hand enumerated list is exhaustive, and open-ended description is not reflective of current law.
Genocide: deciding on membership
- Objectively (factual distinctions):
- Subjectively (based on perceptions): → partially subjective concept of self-perception OR perception of perpetrators.
Genocide: actus reus: ‘killing’
The act must be intentional, but not premeditated.
→ conduct that led to the death.
Genocide: actus reus: ‘Causing serious bodily or mental harm to members of the group’
‘Serious harm’: A grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.
Mental harm that prevents them to continue reproducing.
Furthermore, mental harm is permanent impairment of mental faculties through drugs, torture or similar techniques.
Does NOT need to be permanent!
Genocide: actus reus: ‘deliberately […] conditions of life’
Does not immediately kill the group, but seeks to bring about their physical destruction in the end. It is calculated, in order to reach the result.
‘Conditions of life’: e.g. deliberate deprivation of resources.
Genocide: actus reus: ‘forcibly […] transferring children’
‘Force’: Not restricted to physical force, may also include threat or coercion which causes fear.
Cultural genocide
Cultural genocide not in the scope of the Convention of customary law.
Key Principles of HL
- Non-combatants (prisoners-of-war, hors de combat) are spared from various forms of harm.
- The principle of distinction: Combatants must distinguish onLy military objectives.
- The principle of proportionality: Combatants must take measures to avoid or minimize collateral civilian damage.
- Restrictions on the means and methods of war: To reduce unnecessary suffering and respect humanitarian principles.
Jus ad bellum =
Law regarding resort to armed conflict.
Jus in bello =
Law governing conduct during the armed conflict.
JCE in ICC: differences
Art. 25(3)(d) –> JCE I and II largely covered in Art.25(3)(d), not JCE III. Difference is that JCE is considered as a form of preparation, liability under Art.25 ICC Statute as a form of complicity.
ICC: Co-perpetration: ‘essential contribution’
In that the perpetrator could frustrate the commission of the crime by not undertaking their part. This doesn’t require physical presence, nor need the contribution to occur at the time of the offense per se.
Civil law (inquisitorial) =
One official both prosecutes and adjudicates the case and decides on the verdict (judge-led). There are more relaxed admissibility evidentiary rules.
Common law (accusatorial/adversarial) =
The two functions are kept separate, investigations and evidentiary presentations are driven by parties each striving to impress on adjudicators. There is a professional judge presiding over the proceedings. There are strict rules on evidence to protect from prejudice.
ICC: rights
- Internationally recognized human rights standards should be respected.
- Independence and impartiality: Independence requires an institutional and functional separation from the executive and legislative powers, as well as from the parties.
- Presumption of innocence
- Public, fair and expeditious proceedings
ICC: guilty plea
Adopts ‘admission of guilt’ instead of ‘guilty plea’. Not instantly convicted, but loose investigation. Plea bargaining is possible.
ICC: Trial stage: model
Two-case model: but elaborated
1. prosecution making submissions and presenting evidence first,
2. defense following.
3. EXTRA: evidence submitted by participating victims.
Interlocutory appeals =
Appeals against any rulings other than the judgment on the merits (guilt, sentence, reparations). Purpose is to obtain clarity on matters that should be resolved without waiting until the appellate review of the decision on the merits.
JCE I & JCE III
JCE III only possible when JCE I exist! Apply both JCE’s! The original plan does certainly take place (JCE I): all members share thes ame direct intent.
