Int'l Criminal Law

Question 1

Emergence of Int’l Criminal Law

Answer 1

• Following WWII there was a big philosophical shift that certain times of state should primarily be construed as individual crimes of hate. “These are the crimes of men, not the crimes of abstract entities.” (Same model in Japan). This is an exception to the norm of state responsibility.
• 1980s/90s Soviet Union collapsed, new institutions are created, such as the ICTY and the ICTR (potential of int’l response was suddenly there).
  ⇨ These organizations have expressive value.

Question 2

Types of individuals are prosecuted

Answer 2

1. The leaders; and
2. The brutes/sadists.
   Guilt of the few, comforts the rest.

Question 3

Extraordinary crimes

Answer 3

Crimes against society in addition not just against the body of the victim (ordinary crimes), they inflict moral injury on the international community.
Hannah Arendt: they explore the limits of the law.

Question 4

Characteristics of Extraordinary Crimes

Answer 4

1. Collective crimes: they implicate massive numbers of perpetrators and victims and are widespread and systematic.
2. Crimes of a state or a state like actor, often taking the form of an official policy/plan.
3. Crimes of conformity: committed by group where individuals are conferring to a social norm of hate. “Crime as a social norm” The perpetrators are no deviants or outcasts, but rather well adjusted. The violence is deeply rooted in identity politics.

Question 5

The ICC

Answer 5

Est. 2003, military power ≠ members (exception: a few EU states).
Established to create a permanent institution to end impunity in the judicial process for crimes against humanity etc.

Question 6

The US and the ICC

Answer 6

• The US in not a member of the ICC.
• Congress: American Service Member Protection Act: if any American service member is ever held in custody of the ICC it authorizes military intervention into NL.
• US is not opposed to idea of the ICC: two opportunities to veto a security council referral to the ICC, but did not do so.
• Major point: underpinning concept: the turn to criminal law to post conflict justices the US agrees with.

Question 7

ICC Jurisdiction

Answer 7

Art. 12—Jurisdiction through:

1. Nationality of the perpetrator; or
2. Territory on which the crime took place.

A national of a non-member state can be brought in front of he ICC, if the crime was committed on territory of a member state.
Note: Only applies to state party and proprio motu referrals, not SC referrals.

Question 8

ICC Referrals

Answer 8

[How a case gets to the ICC/prosecutor’s office, which holds all the power]
Three ways:
1. State party referral
2. Proprio motu
3. Security Council referral
Most referrals = state referral b/c evidentiary problem when the state is unwilling to refer.

Question 9

ICC State Party Referrals

Answer 9

State party referral: state having jurisdiction under Art. 12 may refer a case. Often self-referral = a state refers its own nationals. Governments facing internal violence refer the loosing side, stigmatizing them, legitimizing their own actions.

Question 10

ICC Proprio Moto Referrals

Answer 10

Aka: on your own accord. Chief prosecutor can refer a case that the ICC has jurisdiction over. Prosecutor can initiate an investigation. Designed to help oppressed groups lacking political power. Main source of evidence = NGOs ≠ state.

Question 11

ICC Security Council Referral

Answer 11

Security Council passes a resolution determining there was an act of aggression, a threat to the peace or a breach of the peace, then they may
(1) authorize the use of force under Chapter 7 OR
(2) use non-violent measures under Art. 41/42 such as sanctions -> incl. referral of individual act of leaders to the ICC.
[EX: ICTR/ICTY created that way, although ad hoc, focused on one jurisdiction, time limited].
Only works if no permanent member (US, China, Russia, UK, France) vetoes.

Question 12

ICC Deferrals

Answer 12

Allows deferral of case in 1 year installment by the Security Council, if no permanent member vetos. Never happened. Any referral can be deferred by the SC.

Question 13

ICC Admissibility

Answer 13

Only has jurisdiction if a nation is unable and unwilling to genuinely investigate or prosecute. National jurisdiction gets the first try. It’s a complimentary relationship.

Symbolically = most important article b/c it says that the best/enlightened way of dealing with atrocities is a heavily proceduralized criminal trial with imprisonment punishment. Truth commission = not an acceptable to deal with atrocities.

Question 14

ICC Crimes Covered

Answer 14

1. Genocide
2. Crimes Against Humanity
3. War Crimes
4. Crimes of Aggression

The same actus reus can be classified as genocide, war crimes, crimes against humanity etc. depending on the mens rea and the social context in which the crime occurred.

Question 15

Emergence of Genocide

Answer 15

Genos • cide (Greek=race) (Latin=killing) created by Lamkin in response to WWII.
It generally means massive murder against a group of individuals, who are targeted anonymously merely because they are members of a certain group. First put into the “International genocide convention” in 1951, later included in the Rome Statute.
Art. 6 of the Rome Statute copies the genocide convention. ICTY and ICTR use essentially the same definition.
Lemkin’s original definition was much broader.
⇨ Not social, occupation, or political groups (Soviet Union was against that), also no cultural groups (Brits were concerned about that).

Question 16

Genocide Elements

Answer 16

1. Actus reus: violence, murder, relocation;
2. Mens rea: (highest of any crime) intent to wipe out in whole or in part, eliminate or exterminate -> “in part” refers to a limited territory, reach, space where the perpetrator had control.
3. Targets a group based on (1) nationality, (2) race, (3) ethnicity, or (4) religion.

Note: Needs establishment of a nationwide plan and a link between the plan and perpetrator.
Definitions of the groups = unclear and courts have made them more flexible (EX: ICTR ethnicity does not only have to have objective categories it can be engineered, created, manufactured) ⇨ otherwise, Art. 7 of the Rome Statute.

Question 17

Crimes Against Humanity Elements

Answer 17

1. Actus reus: enumerated acts in Art. 7;
2. Mens rea: that form part of a widespread and systematic attack against a civilian population; and
3. The perpetrator has to know that this is part of a widespread and systematic attack.
   Captures moral difference between killing of soldiers and civilians.
   The awareness of the perpetrator is the key difference between ordinary crimes and crimes against humanity (CAH).

Question 18

Crimes Against Humanity Coverage

Answer 18

Jurisprudentially CAH emerged to cover two issues that are not covered by genocide:

1. Conduct of the perpetrator: Conduct that was sought to place under genocide, such as persecutory conduct that does not rise to intent to eliminate (Ex: Nazi policy prior to the Wannsee conference)
2. Group of the victims: Conduct that is accompanied by the required intent to eliminate under the crime of genocide, BUT the targeted group is not one of the four listed groups under Art. 6.

Question 19

CAH Widespread and Systematic Requirement

Answer 19

Widespread and systematic: Can be massive one time attack or lower intensity attacks over time
⇨ Note: This attack does not have to occur in the context of an armed conflict.

Question 20

CAH Origin

Answer 20

Originated in the context of ICTY “defenses” -> now a mixed population of civilians and armed combatants does not negate responsibility.
Definition of CAH and genocide include mens rea elements:
⇨ absolute defense to say that the crime was committed out of a personal reason.

Question 21

CAH Impact

Answer 21

Definition of CAH is a growth/expansionist area of int’l law (Ex: sexual violence).

Question 22

CAH Actus Reus

Answer 22

Individual CAH each have their own, different actus reus requirement! CAH = umbrella category for widespread violence.

Question 23

CAH Widespread and Systematic Policy

Answer 23

Widespread and systematic policy/ideology? (Ex: Al-quaida and 9/11). There has to be a collective framework that has a systematic and bureaucratic element.

Question 24

War Crimes Fundamentals

Answer 24

The Laws of War:
How do we wage war? Jus in bello
War Crimes: Art. 8 of the Romes Statute
Context of the crime = armed conflict.

Question 25

War Crimes Values

Answer 25

Three values:

1. Discrimination: separate/differentiate between combatants and civilians. You must be discriminatory in your method of warfare (civilians ≠ be targets).
2. Proportionality: violence must be proportional to threat/violence that the enemy poses. Narrowly tailored. (Ex: US behavior in WWII would fail here).
3. Humanity: no use of inhumane weapons.

Question 26

The Tale of Two Cities

Answer 26

1. Hague: explores what (what kinds of weapons and tactics)
2. Geneva: explores who (who is fair game) four groups of people (shipwrecked, civilians [4th Geneva Convention], wounded, and pows [3rd Geneva Convention]) are protected by four Geneva Conventions. This will likely be expanded [now it includes childsoldiers being protected + Drumbl’s speculation: human beings as a protected class, because superpowers will be able to have robots fighting each other -> law of war motored by power politics].

Question 27

Crime of Aggression Fundamentals

Answer 27

When is it legal to go to war? Jus ad bellum
Crimes of Aggression: Art. 8bis of the Rome Statute
Humanitarian Armed Intervention = controversial, but out of style.
Drumbl’s commentary: Art. 8bis useless in absence of military defeat.
⇨ We can have a legally started war that is conducted in illegal manner and the other way around.

Question 28

Crime of Aggression: When is it legal to wage war

Answer 28

1. Security Council: the UN Security Council authorizes the use of force under Art. 39 and Art. 42 (threat to int’l peace and security and forcible measures respectively) of the UN Charter, when there is breach of peace, threats to peace, and an act of aggression.
2. Self-Defense: Art. 51 UN Charter armed force is legal when under in self-defense (that is when there is an actual attack or an imminent threat of force).

Question 29

The law of war–three points

Answer 29

1. Law of war only applied to armed conflict.
2. Int’l crimes of war prohibit more in int’l armed conflict than in non-int’l armed conflict. Core int’l crimes are equally criminalized in both forms of armed conflict.
3. Definition of armed conflict: Important b/c no Art. 8 crime if there is no armed conflict. States prefer not to classify as an armed conflict b/c it is legally speaking easier to fight criminals than combatants.

Question 30

Armed Conflict and the Law of War

Answer 30

1. Int’l armed conflict
2. Non-international armed conflict
   1. Civil war (armed conflict within a state) => internationalization of civil wars
   2. State vs non-state actor (Hamdan decision: for US Geneva Conventions apply in this kind of conflict)

Question 31

Sentencing at the ICC/ICTY/ICTR

Answer 31

Int’l criminal tribunals have not hierarchy of sentencing, not grit. The categories of criminality are not attached to sentencing grits.
ICC: max. 30 years, except in extreme situations = ‘for life.’
ICTY ~15 years.
ICTR ~20 years, couple of life sentence.
ICC 12, 9, 14, 25 years.
Both utilitarian and retributivist theories are used.

Question 32

Punishment in Int’l Criminal Law

Answer 32

Int’l legal system squeezes out forgiveness and vengeance, sees amnesty or vengeance as problematic. Fails to emotionally connect to victims or perpetrators and it overpromises.

Question 33

Int’l Criminal Law and Rwanda

Answer 33

Rwanda (contributed hugely to development of post-conflicts resolution systems worldwide). Three levels of justice:

1. ICTR: prosecuted ~90 people, some conflict with gov’t about jurisdiction.
2. Special Chambers: special chambers of Rwandan domestic courts using integrated int’l criminal law into domestic law.
3. Garcaca: court like community proceedings ~ 1 mil. people. Sentencing could be severe, but community service was part of it. This looks good on paper but problematic when perpetrator comes in close contact with victims. Changed to be more public community work.

Question 34

Rwanda and the Death Penalty

Answer 34

Debate about the death penalty b/c they publicly executed some perpetrators by shooting in a stadium, after this no more death penalties imposed. Drumbl: this was cathartic for the Rwandan people.

Question 35

Garcaca

Answer 35

Garcaca: local community, restorative justice, but only men (traditionally) could participate.

• Rwandan gov’t did not like Gacaca b/c they could not control local autonomous space.
• Traditional unwritten, now written and tweaked.

Question 36

Written and changed version of Garcaca

Answer 36

1. Participation in Garcaca became mandatory;
2. Legalized: lawyers for prosecution;
3. Procedualitzed;
4. Elected tribunal, with mandatory % of women;
5. Punishment: incarceration and community service;
6. Plea bargaining system introduced (confession before accused -> big sentence reduction; confession after accused, but before trial -> small sentence reduction; confession during trial -> no sentence reduction).

Question 37

Rwanda and Sentencing

Answer 37

The ICTY and ICTR do not have a sentencing grit but, aggravating (status/rank, brutality) and mitigating factors to exist.

Question 38

Amnesty and Truth Commissions

Answer 38

Focus on bigger “truths” than the ICC and criminal law b/c they look at small truths such as ‘you were there and did this.’
Drumbl speculation: ICC mandates prosecution and punishment through a criminal trial. The Azanian People would be decided differently today.