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)